On September 21, 2012, the Supreme Court of Canada released its
decision in Canada (AG) v Downtown Eastside Sex Workers United Against
Violence Society, a case dealing with the law of public
interest standing in constitutional cases. The court's decision
appears to lower the bar for standing, which might make it easier
for non-governmental organizations and other third parties to
initiate constitutional claims.
The Downtown Eastside Sex Workers United Against Violence
Society (SWUAV) commenced an action challenging the constitutional
validity of sections of the Criminal Code that deal with different
aspects of prostitution. SWUAV seeks a declaration that these
provisions violate the rights of free expression and association,
to equality before the law and to life, liberty and security of the
person guaranteed by the Canadian Charter of Rights and
In 1981, the Supreme Court of Canada established a threepart
test for public interest standing:
Is there a serious justiciable issue as to the law's
Is the party seeking standing either directly affected by the
law or does he or she have a genuine interest as a citizen in the
validity of the legislation?
Is there no other reasonable and effective manner in which the
issue may be brought before the court?
In this case, the British Columbia courts accepted that SWUAV
raised a substantial or important constitutional issue that was not
frivolous. As such, there was a serious justiciable issue. The
courts also accepted that SWUAV had a genuine interest in the
claim—in the Supreme Court's words, it was
"fully engaged with the issues".
The issue in dispute was whether there was another reasonable
and effective way to bring the constitutionality of the
prostitution provisions before the court. The British Columbia
Supreme Court refused standing to SWUAV. It held that litigants
charged under the provisions could challenge the laws as
unconstitutional. Alternatively, a companion case in Ontario (Bedford v Canada (AG)) demonstrated that potential
plaintiffs with personal interest standing could bring these issues
before the court. The British Columbia Court of Appeal disagreed.
In its view, this case raises systemic issues, which are different
in scope from an individual challenge. It granted standing to
The Supreme Court agreed with the Court of Appeal that
SWUAV's claim should proceed. It found that the motion judge
applied the test for public interest standing too rigidly in that
he required SWUAV to show no other means for litigating
the issues. Instead, the motion judge should have applied a more
purposive, flexible and discretionary approach that balances scarce
judicial resources with the principle that state action should
conform to the Constitution. In doing so, the court should
the plaintiff's capacity to bring forward a claim
whether the case is of the public interest
whether there are realistic alternative means to challenge the
the potential impact of the proceeding on the rights of others
who are equally or more directly affected.
As the Supreme Court noted, the test for standing has not
"always been expressed and rarely applied so
restrictively." As such, motion judges have been using the
purposive and flexible approach in standing cases notwithstanding
the rigid language of the legal test. Thus, it is unclear whether
this decision will open the "floodgates" in
constitutional and public interest litigation. At least for SWUAV
though, its claim can proceed, which may lead to more claims of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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