On September 21, 2012, the Supreme Court of Canada unanimously dismissed the appeal in Attorney General of Canada v Downtown Eastside Sex Workers United Against Violence in Society and Sheryl Kiselbach.1 As a result, the decision of the Court of Appeal for British Columbia was upheld and the test for determining public interest in constitutional cases in Canadian courts has been relaxed allowing greater discretion and flexibility in the circumstances.

The context of this decision involves a former female sex worker and a Society whose objects include improving conditions for female sex workers in the Downtown Eastside of Vancouver (the "Respondents"). The Respondents started an action in British Columbia, challenging the constitutional validity of sections of the Criminal Code dealing with different aspects of prostitution. In response, the Attorney General of Canada applied to dismiss their claim on the ground that they lacked standing before the courts.

The chambers judge agreed with the Attorney General's position and dismissed the Respondents' claim for lack of standing. However, the British Columbia Court of Appeal reversed that decision: it interpreted the Supreme Court of Canada decision in Chaoulli v Quebec (Attorney General)2 to mean that the discretion to grant standing must be exercised in a broad and liberal manner. Doing so ensures that impugned laws are not immunized from review.

At the root of the law of public standing is the need to strike a balance "between ensuring access to the courts and preserving judicial resources" (Canadian Council of Churches v Canada (Minister of Employment and Immigration.3 In the current decision, the Court clarified the proper approach to determining public standing:

  1. Whether there is a serious justiciable issue raised;
  2. Whether the plaintiff has a real stake or a genuine interest in it; and
  3. Whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.
  • These factors should not be viewed as rigid items on a checklist or as technical requirements. Rather, they should be viewed as interrelated considerations and weighed cumulatively in light of their purposes – what the Court described as a purposive, flexible, and generous approach.
  • Courts should also exercise their discretion and balance the underlying rationale for restricting standing with the important role of the courts in assessing the legality of government action.

The debate between the Attorney General of Canada and the Respondents hinged on the third factor: historically, this factor had been viewed as a strict requirement that the party seeking standing had to persuade the court that there was no other reasonable and effective manner in which the issue could be brought before the courts. The Supreme Court, however, concluded that the third factor would be better expressed as requiring that the proposed suit, in all of the circumstances, be a reasonable and effective means of bringing the case to court.

what is the impact of this decision?

For one thing, the scope of those persons and groups seeking public standing has broadened considerably. It bears note that there were a wide variety of interveners in this appeal who understood that the public importance of this case was much wider than this one constitutional challenge. Interveners included among others: EcoJustice Canada, Canadian Civil Liberties Association, Coalition of West Coasts Women's Legal Education and Action Fund, Justice for Children and Youth, ARCH Disability Law Centre, David Asper Centre for Constitutional Rights, and Canadian HIV/AIDS Legal Network.

What remains to be seen is whether the public interest standing principles in this decision, expressed in the context of a constitutional challenge to provisions in the Criminal Code, will be as readily applied in non-constitutional cases that nevertheless involve public interest issues.

Traditionally, the courts have limited public interest standing to screen out "busybody" litigants and to ensure that courts are not overburdened with marginal or redundant cases while not disregarding the benefit of contending points of view beyond the immediate parties and, as Justice Cromwell acknowledges, ensuring "that courts play their proper role within our democratic system of government."

If Canadian courts will no longer take a rigid and strict view when determining public standing, and if these principles are applied equally to non-constitutional cases, this may encourage governments and private sector parties involved in public interest activities to pay more heed to public interest groups in advance of litigation.

Golsa Ghamari, articling student, co-authored this article.