Moving Towards a More Just Society: Applying a Purposive & Flexible Approach to the Test for Public Interest Standing in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society
I arrived at law school with a slightly naïve and romantic notion of justice. I was determined to learn how the law could be used to achieve social justice, empower individuals from marginalized groups and move us closer to a collective vision of the good. However, within a few weeks, I quickly learned that there is no such thing as universal justice. Rather, the legal system is a forum for choosing among competing visions of justice, which are dependent upon who has access to the system in the first place. Instead of reading about systemic change, I was forced to consume case law that applied archaic rules and involved matters that I found to be of little significance in regards to the goal of achieving a more just and equitable society.
However, in the midst of all these cases, I started to come across decisions that made incremental, yet important, changes to the law. I slowly began to understand that change within the legal system, like any form of social change, requires time, patience and perseverance. The most important of all these cases are the Charter challenges, which demonstrate that justice is not a static entity, but rather a concept that must evolve with our changing understanding of what constitutes a just society. Dickson J. summarized this perspective in Hunter v Southam,  2 SCR 145, in stating that the function of a Constitution, when joined with the Charter, is to provide “for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.”
The importance of ensuring that the law keeps pace with society’s changing expectations of justice was recently acknowledged by the Supreme Court of Canada’s (SCC) ruling Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. This decision, which granted public interest standing to the respondents, confirms that instead of being a static entity bound by archaic rules, justice is an open-ended concept that continues to evolve.
The facts of this case have been recounted in an earlier blog post. To recap briefly, the case arose out of a Constitutional challenge to provisions in the Criminal Code related to prostitution on the basis that those provisions violate a number of the respondents’ rights and freedoms under the Charter. The initial challenge was launched by the Downtown Eastside Sex Workers United Against Violence Society, a charity that is dedicated to improving the working conditions for female sex workers in Vancouver’s Downtown Eastside (DTES), and Sheryl Kiselbach, a former sex worker who currently works as a violence prevention coordinator in the DTES. Their case was dismissed by the British Columbia Supreme Court on the basis that neither party “had private interest standing and that discretionary public interest standing should not be granted to them.” On appeal, the British Columbia Court of Appeal (BCCA) agreed that Ms. Kiselbach lacked private interest standing, but found no reason to deny public interest standing to both parties. The Attorney General of Canada appealed to the SCC.
The SCC’s Analysis
The test for public interest standing, as set out in Canadian Council of Churches v Canada (Minister of Employment & Immigration),  1 SCR 236, requires that the Court consider three factors: (1) whether the case raises a serious justiciable issue; (2) whether the party bringing the action has a real stake or a genuine interest in its outcome and; (3) whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to Court. On appeal to the SCC, the main issue to be decided in this case was whether these three factors “are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing.” Writing for a unanimous court, Cromwell J. held that the latter approach is the correct one, and as a result, the BCCA’s decision should stand.
In his decision, Cromwell J. first reviewed the concerns underlying the limitations that have traditionally been placed on the law of standing. These reasons, initially laid out in Finlay v Canada (Minister of Finance),  2 SCR 607, include, “properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected by the determination of the issues; and preserving the proper role of courts and their constitutional relationship to other branches of government.” After identifying these concerns, Cromwell J. reviewed the three branches of the test for public interest standing, though his discussion focused primarily on the third factor, which formed the heart of the issue in this case. While the “reasonable and effective means” factor “has often been expressed as a strict requirement,” his review of the case law found that in practice, it has rarely been applied in such a manner. He concluded that the third factor should be considered in light of all the circumstances, as this approach “better reflects the discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area.”
On applying the test to the facts of this case, it was noted that there was no dispute between the parties regarding a “justiciable issue.” However, the Attorney General maintained that the action failed to “disclose a serious issue with respect to the constitutionality” of the impugned provisions. On this matter, Cromwell J. agreed with the chambers judge that as long as the statement of claim revealed a serious justiciable issue, it is unnecessary “to get into a detailed screening of the merits of discrete and particular aspects of the claim.” In considering the second factor, he easily concluded that the proposed plaintiff’s interest was satisfied because “society has a genuine interest in the current claim” and both respondents are intimately engaged with the issue raised.
Moving to the third stage of the test, he first dealt with three concerns that had prompted the chambers judge to deny public interest standing to the parties: the existence of similar litigation in the case of Bedford v Canada, 2010 ONSC 4264, the fact that an accused in a criminal prosecution under one of the impugned provisions “could raise constitutional issues as of right,” and finally the possibility for individual sex workers to raise the challenge a private litigants. Cromwell J. reviewed each of these concerns in turn and concluded that under a purposive and flexible approach, none were sufficient to deny public interest standing to the parties.
Leaving the strict approach aside, he then reviewed other considerations to determine whether the litigation satisfies the “reasonable and effective means” factor. Because the respondents “raised issues of public importance that transcend their immediate interest,” he reasoned that the “case constitutes public interest litigation.” He also found that a challenge of this nature is reasonable because it provides a “constitutional lens” to evaluate “the overall effect of this scheme on those most affected by it.” In relation to effectiveness, he found that the challenge may also “prevent a multiplicity of challenges in the context of criminal prosecutions” and that the society was well-equipped to proceed with the support of experienced human rights lawyers. With the third factor satisfied, he concluded that “[g]ranting standing will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but will also promote the economical use of scare judicial resources.”
Moving Towards a More Just Society
The SCC’s unanimous decision in this case is important on two fronts. First, it gives the green light to the respondents to proceed with their Charter challenge and to litigate the substance of their concerns in court. While the future of this case may be rendered moot by the result in Bedford, it is certainly not without its own merits. By granting public interest standing to one of society’s most historically disadvantaged groups, the court has also issued a symbolic reminder that access to justice remains a fundamental concern and that the law has an important role to play in achieving systemic social change.
Chief Justice McLachlin herself has publicly acknowledged that there is a justice deficit in Canada that puts the very foundation of our democracy at risk. While she has also stated that there are no “quick-fix answers” to the problem, this decision shows that public interest standing is one important tool for increasing access to justice in Canada. In discussing the factors that courts should weigh when considering the “reasonable and effective means” factor, Cromwell J. explicitly suggested that the “courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged people in society whose legal rights are affected.” Granting public interest standing to sex workers, a group whose legal rights remain contested, is a powerful affirmation of this statement.
Critics may warn that relaxing the court’s discretion to grant public interest standing is inappropriate because it is the role of the Legislature, not the courts, to make decisions on matters of social policy. But, as Cromwell J. clearly articulates in this case, the flexible and purposive approach does not eliminate the need to carefully weigh a number of factors in each case, including “whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources.” However, what constitutes a “realistic alternative means” is a fact specific inquiry that a purposive and flexible approach is meant to accommodate. While in theory this case could be brought forward by an individual who had been charged under one of the impugned provisions, the evidence showed that sex workers in the DTES were unlikely to do so, as “they feared loss of privacy and safety and increased violence by clients.”
Adopting a flexible approach to the “reasonable and effective means” factor confirms that legal challenges of sufficient public interest have an important role to play in achieving systemic social change. As a society, we cannot begin to talk about “systemic change” until we willingly acknowledge the challenges that prevent us from moving forward. Perhaps the greatest challenge for society remains our inability to accept that, despite the advancements we have made towards a more just society, there remain many silent voices that we willfully choose to ignore. These voices belong to the most vulnerable members of society, such as sex workers who continue to face discrimination and violence as a result.
By allowing the voices of sex workers to be heard, the SCC returns to Dickson J’s point in Southam that our Constitution and the way we view our rights will inevitably evolve to keep pace with society’s changing expectations. This decision will hopefully open the door for other vulnerable members of society to come forward with issues of public interest that “transcend the interests of those most directly affected by the challenged law or action.” While there is still much work to be done, this case at least provides hope for idealistic law students and anyone who believes that a more just society is not only imaginable but truly possible.