Supreme Court on Public Interest Standing - An Expansion?

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 was just released upholding the Court of Appeal  ruling that an organization of sex workers has status to challenge the prostitution laws.  This is something of a surprise as clearly persons charged have direct standing – the decision, see summary below, seems to expand greatly the scope of public interest standing.  There may also a suggestion that the Court is anxious to rule on the prostitution laws:

In determining whether to grant standing in a public law case, courts must consider three factors:  whether the case raises a serious justiciable issue; whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.  A party seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favor granting standing.  All of the other relevant considerations being equal, a party with standing as of right will generally be preferred.

In this case, the issue that separates the parties relates to the formulation and application of the third factor.  This factor has often been expressed as a strict requirement that a party seeking standing persuade the court that there is no other reasonable and effective manner in which the issue may be brought before the court.  While this factor has often been expressed as a strict requirement, this Court has not done so consistently and in fact has rarely applied the factor restrictively.  Thus, it would be better expressed as requiring that the proposed suit be, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

By taking a purposive approach to the issue, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality.  A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing.  There is no binary, yes or no, analysis possible. Whether a means of proceeding is reasonable, whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances.

In this case, all three factors, applied purposively and flexibly, favour granting public interest standing to the respondents.  In fact, there is no dispute that the first and second factors are met: the respondents’ action raises serious justiciable issues and the respondents have an interest in the outcome of the action and are fully engaged with the issues that they seek to raise.  Indeed, the constitutionality of the prostitution provisions of the Criminal Code constitutes a serious justiciable issue and the respondents, given their work, have a strong engagement with the issue.

In this case, the third factor is also met.  The existence of a civil case in another province is certainly a highly relevant consideration that will often support denying standing.  However, the existence of parallel litigation ― even litigation that raises many of the same issues ― is not necessarily a sufficient basis for denying standing.  Given the provincial organization of our superior courts, decisions of the courts in one province are not binding on courts in the others.  Thus, litigation in one province is not necessarily a full response to a plaintiff wishing to litigate similar issues in another.  Further, the issues raised are not the same as those in the other case.  The court must also examine not only the precise legal issue, but the perspective from which it is made.  In the other case, the perspective is very different.  The claimants in that case were not primarily involved in street-level sex work, whereas the main focus in this case is on those individuals.  Finally, there may be other litigation management strategies, short of the blunt instrument of a denial of standing, to ensure the efficient and effective use of judicial resources.  A stay of proceedings pending resolution of other litigation is one possibility that should be taken into account in exercising the discretion as to standing.

Taking these points into account here, the existence of other litigation, in the circumstances of this case, does not seem to weigh very heavily against the respondents in considering whether their suit is a reasonable and effective means of bringing the pleaded claims forward.

Moreover, the existence of other potential plaintiffs, while relevant, should be considered in light of practical realities, which are such that it is very unlikely that persons charged under the prostitution provisions would bring a claim similar to the respondents’.  Further, the inherent unpredictability of criminal trials makes it more difficult for a party raising the type of challenge raised in this instance.

In this case, also, the record shows that there were no sex workers in the Downtown Eastside willing to bring a challenge forward.  The willingness of many of these same persons to swear affidavits or to appear to testify does not undercut their evidence to the effect that they would not be willing or able to bring a challenge in their own names.

Other considerations should be taken into account in considering the reasonable and effective means factor.  This case constitutes public interest litigation: the respondents have raised issues of public importance that transcend their immediate interests.  Their challenge is comprehensive, relating as it does to nearly the entire legislative scheme.  It provides an opportunity to assess through the constitutional lens the overall effect of this scheme on those most directly affected by it.  A challenge of this nature may prevent a multiplicity of individual challenges in the context of criminal prosecutions.  There is no risk of the rights of others with a more personal or direct stake in the issue being adversely affected by a diffuse or badly advanced claim.  It is obvious that the claim is being pursued with thoroughness and skill.  There is no suggestion that others who are more directly or personally affected have deliberately chosen not to challenge these provisions.  The presence of K, as well as the Society, will ensure that there is both an individual and collective dimension to the litigation.