The Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kieselbach, a former prostitute now working as a violence-prevention counsellor, want to bring a constitutional challenge to the Criminal Code’s provisions on prostitution.
At issue in AG v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, was whether they had standing to do so. As Cromwell J notes in the opening of the judgment, limitations on standing are necessary to weed out marginal cases and busybody litigants. The test that has emerged for standing in a case involving public law is whether (a) the case raises a serious justiciable issue, (b) the party seeking standing has a real stake or genuine interest in the outcome and (c) whether the proposed suit is a reasonable and effective means to bring the case to court. The three elements are ‘interrelated factors that must be weighed together’.
Justice Cromwell decided in favour of the respondents on all three points, affirming the decision of the BC Court of Appeal (which had reversed the judge at first instance). The analysis of the three elements of the standing test should be flexible and purposive. The last, in particular, has tended not to be considered rigidly and should be applied purposively. The respondents clearly raised a serious justiciable interest, and both the Society and Kieselbach have a genuine interest in the outcome of the litigation, being ‘deeply engaged’ in the lives of sex workers on the streets of Vancouver. The judge at first instance took an overly rigid approach to the third element in concluding that a constitutional challenge to prostitution laws would be more appropriately advanced in the context of the criminal prosecution of an individual charged under them – for example the Bedford case which was on-going at the time (Bedford v Canada (AG), 2010 ONSC 4264, rev’d in part 2012 ONCA 186). While the existence of actual or parallel litigation is relevant, it is not necessarily a sufficient basis for the denial of standing. Bedford was happening in another province and would not be binding in BC; it therefore might not provide a full response to a plaintiff in the latter. It also dealt with different constitutional issues and not the entire legislative scheme. A summary conviction proceeding for prostitution offences might not be ideal for a constitutional challenge. The judge also underestimated the difficulties that someone in the Society’s constituency would face in mounting a constitutional challenge: these are people whose families and friends may not know what they do for a living and who fear the violence of their customers or the potential loss of custody of their children. The marginal nature of what they do may make it impossible for them to take part in constitutional litigation. The respondents could, in contrast, bring an effective challenge to the legislative scheme as a whole, without adversely affecting anyone with a more personal or direct stake in it. Letting them proceed with the challenge also had the benefit of conserving scarce judicial resources.