When Sheryl Kiselbach and the Downtown Eastside Sex Workers United Against Violence Society decided to challenge the Criminal Code provisions around prostitution, the chambers judge denied their application for public or private interest standing.
The B.C. Court of Appeal reversed that decision, granting them public interest standing, and this position was upheld this week at the Supreme Court of Canada in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society.
The appellant’s factum is available here, and the respondent’s factum available here. The factum of some of the interveners are also available online, such as the Coalition of West Coast Women’s Legal Education and Action Fund & Justice for Children and Youth & Arch Disability Centre, and the British Columbia Civil Liberties Association.
The constitutional challenge raised by the Society was based on ss. 2(b), 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms as follows:
 The respondents’ position is that the prostitution provisions (ss. 210 to 213) infringe s. 2(d) freedom of association rights because these provisions prevent prostitutes from joining together to increase their personal safety; s. 7 security of the person rights due to the possibility of arrest and imprisonment and because the provisions prevent prostitutes from taking steps to improve the health and safety conditions of their work; s. 15 equality rights because the provisions discriminate against members of a disadvantaged group; and s. 2(b) freedom of expression rights by making illegal communication which could serve to increase safety and security.
The test for public interest standing is obtained from Canadian Council of Churches v. Canada (Minister of Employment and Immigration):
- whether the case raises a serious justiciable issue
- whether the party bringing the action has a real stake or a genuine interest in its outcome, and;
- whether the proposed suit is a reasonable and effective means to bring the case to court
The basis of the government’s appeal was whether the factors should be treated as a checklist or as general considerations that should be taken into account by the court. Neither Kiselbach or the Society was currently in contravention of the Code provisions, as they were not involved directly in prostitution, and the association was a distinct legal entity from its members. Justice Ehrcke ruled at trial that this was not a reasonable and effective way to bring the case to court.
The Society had claimed that their members were particularly vulnerable and could not come forward. Justice Ehrcke noted that they would have to testify as witnesses regardless, and there are many criminal prosecutions in the province which could raise the constitutional challenges as a right. He also referred to the successful litigation in Ontario around similar issues in Bedford v. Canada.
Justice Saunders of the Court of Appeal interpreted Chaoulli v. Quebec (Attorney General) as recognizing that systemic challenges differ from individual challenges in scope, which should result in a more relaxed approach towards standing. Justice Saunders also referred to British Columbia v. Crockford before granting the parties standing:
 A complaint of systemic discrimination is distinct from an individual claim of discrimination. Establishing systemic discrimination depends on showing that practices, attitudes, policies or procedures impact disproportionately on certain statutorily protected groups: see Radek at para. 513. A claim that there has been discrimination against an individual requires that an action alleged to be discriminatory be proven to have occurred and to have constituted discrimination contrary to the Code. The types of evidence required for each kind of claim are not necessarily the same. Whereas a systemic claim will require proof of patterns, showing trends of discrimination against a group, an individual claim will require proof of an instance or instances of discriminatory conduct.
In the unanimous decision written by Cromwell J., the Court outlined the main reasons for the development of public standing law:
- Scarce judicial resources and “busybodies” who could affect operation of the court system
- Ensuring contending points of view to allow courts to function as impartial arbiters
- The proper judicial role of the courts and their constitutional relationship with other branches of government
Justice Cromwell also emphasized the principle of legality, which was central to the development of public interest standing:
- state action should conform to the Constitution and statutory authority
- there must be practical and effective ways to challenge the legality of state action
The determination of public interest standing relates directly to the effectiveness of process, and is therefore particularly appropriate for judicial discretion, which therefore should not render the test for public interest standing a strict technical requirement.
He noted that other cases have not applied the third part of the test rigidly, and should be applied purposively to conserve judicial resources and promote full adversarial presentation of the case. This part of the test is not intended to require litigants to show there are no other reasonable and effective ways to bring the issue before the court.
Justice Cromwell then addressed the issue of the Bedford litigation, and pointed out that Bedford did not raise ss. 211, 212(1)(a), (b), (c), (d), (e), (f), (h) or (3) of the Code or challenge provisions on the basis of ss. 2(d) or 15 of the Charter. The cases were sufficiently different, and this case focused more on the perspective of on street-level sex workers.
Justice Cromwell found that a comprehensive declaration is a more reasonable and effective means of obtaining final resolution on the issues than having individual litigants raising constitutional challenges, especially since summary convictions are not always the best place to raise a complex constitutional challenge. He also found considerable privacy and safety differences existed between being a party and providing testimony as a witness in an action.
All of the factors supporting public standing were present, and this approach would actually be the best way to preserve judicial resources:
 …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 the individual respondent, as well as the Society, will ensure that there is both an individual and collective dimension to the litigation.