On September 21, 2012, the Supreme Court of Canada rendered its decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 in which it found that the Respondent society (the “Society”) and one individual have standing to pursue a constitutional challenge to the Criminal Code provisions dealing with prostitution.

While media coverage of the case has tended to focus on the substance of the proposed challenge, from a legal perspective, the decision is of interest because the Supreme Court has clarified the law of standing which determines who is entitled to bring to court constitutional challenges to legislation.

The case was originally commenced by the Society, whose objects include improving working conditions for female sex workers, and by Ms. K., a former sex worker.  The basis for the challenge is that the Criminal Code provisions dealing with prostitution violate various sections of the Canadian Charter of Rights and Freedoms to the extent that they prevent prostitutes from joining together and from taking essential steps to improve their working conditions thereby putting the safety of prostitutes at risk.

The Attorney General of Canada applied to the B.C. Supreme Court to dismiss the action on the ground that the claimants lacked standing to bring it.  Generally speaking, there are two types of standing.  Private interest standing exists where a person is directly affected by the matter in issue.  Perhaps the most obvious example of private interest standing is where someone is charged with an offence under the Criminal Code.  In those circumstances, the person has standing to challenge the constitutionality of the provisions in issue.  Where a person is not directly affected by a case, they nonetheless may be granted public interest standing if a three part test established by the courts is met:

  • There is a serious justiciable issue raised;
  • The party seeking to bring the challenge has a real stake in the proceeding or is engaged in the issues it raises; and
  • The proposed action is a reasonable and effective means to bring the case to court.

In the instant case, the Supreme Court Judge agreed with the Attorney General that the claimants lacked standing and he dismissed the claim.  He held that neither the Society nor Ms. K. had private interest standing because neither had been charged with an offence and Ms. K. was no longer engaged in sex work.  On the issue of public interest standing, the Judge found that the first two elements of the test were met in that there was a serious constitutional issue raised and the claimants had a genuine interest in the validity of the provisions in issue. However, he concluded that the proposed action was not the most effective means of having the issues resolved.  In his view, the provisions could better be challenged by individuals charged under them and he referred to the fact that there were hundreds of criminal prosecutions in B.C. every year in each of which the accused would be entitled to raise the constitutional issues.  The Judge also noted that there was similar litigation underway in Ontario which suggested that there were likely plaintiffs with a more direct interest who could bring the issues forward.

On appeal to the B.C. Court of Appeal, a majority of the Court overturned the decision below and granted the Society and Ms. K. public interest standing.  Madam Justice Saunders, with Madam justice Neilson concurring, held that the proposed action involved more of a systemic challenge to the prostitution laws with the focus being on the cumulative effect of the laws on sex workers generally rather than the individual effect stemming from a criminal prosecution.  In her view, the proposed action was a reasonable means of bringing the issues before the court.  Mr. Justice Groberman dissented.  In his view, the case did not raise any particular issues that could net be better addressed by a person with private interest standing. He was particularly concerned that the more general challenge to the laws proposed by the claimants would not provide the court with the necessary evidence to decide the constitutional issues.

The Supreme Court of Canada agreed with the majority decision of the Court of Appeal.  Mr. Justice Cromwell, writing for the Court, noted that the third element of the standing test has often been narrowed to a strict requirement that a party seeking standing must persuade the court that there is no other reasonable manner in which the issue may be brought before the court.  This narrowing of the test had the effect of limiting public interest standing, particularly in challenges to the criminal law, because there are always individuals directly affected by such laws.  In Mr. Justice Cromwell’s view, courts should not apply a strict requirement concerning possible alternate means of resolving the issues but rather the test should be whether the proposed action is in all of the circumstances a reasonable and effective means to bring the case to the court.  In particular, the court should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality.

Applying this approach in the present case, Mr. Justice Cromwell found that public interest standing for the claimants was justified.  The issues raised were of public importance that transcended individual interests.  The proposed constitutional challenge is comprehensive in that it concerns the overall legislative scheme and the effect of that scheme on those most directly affected by it.  Moreover it serves the interests of judicial economy in that it may prevent a multiplicity of individual challenges in the context of criminal prosecutions.  The issues that might arise in such prosecutions would in any event likely be different and narrower than the issues sought to be raised by the claimants.  Further, there was evidence that no sex workers in the downtown eastside of Vancouver were willing or able to bring a challenge forward.

The movement by the Supreme Court away from a rigid application of the requirement that there be no other effective means of bringing a case forward is a welcome development in public interest litigation.  The notion that an individual charged with prostitution or other offences is better situated to challenge the validity of the law in issue may be theoretically sound but is devoid of any practical reality.  Such individuals, many of whom are amongst society’s most vulnerable, will rarely possess the ability or means of pursuing a complex constitutional challenge.  As a result, absent a liberal and flexible approach to public interest standing, many important cases involving laws that affect a broad range of people would go unheard. 

As an aside to the Supreme Court’s decision, while the result is in my view the proper one, I have some difficulty with the fact that the Attorney General fought the claimants’ standing all the way to the highest court in the country.  It was conceded from the outset that the issues raised in the proposed action were important and that the claimants had a genuine interest in those issues.  In the circumstances, it strikes me that the Attorney General, as the chief legal office of government, should facilitate rather than hinder judicial review of important laws.  By all means, the Attorney General should appear in court and defend the constitutionality of the laws that he or she oversees and should also ensure that cases are brought forward in a reasonable and efficient manner.  In the present case however, the Attorney General’s actions seemed more concerned with precluding judicial review of the laws in issue which, in my view, is inconsistent with the proper role of the Attorney General.  But that is a column for another day.