Supreme Court Takes Public Interest Standing To The Streets

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:

A court's decision to grant or refuse standing involves weighing the following three factors (Minister of Justice of Canada v Borowski,4 as refined in Canadian Council of Churches): Whether there is a serious justiciable issue raised; Whether the plaintiff has a real stake or a genuine interest in it; and 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...