Lowering the Bar for Standing in Public Interest Cases

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 Freedoms.

In 1981, the Supreme Court of Canada established a three-part test for public interest standing:

• Is there a serious justiciable issue as to the law's invalidity?
• 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 SWUAV.

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 consider:

• 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 provision; and
• 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 this type.

Ranjan Agarwal, along with Robert Staley, Derek Bell and Stephen Libin, were counsel to interveners in Bedford v Canada (AG) in the Superior Court of Justice and the Court of Appeal.