A pathway to justice?

By Kate Dunn January - February 2013

Has the Supreme Court of Canada’s ruling in SWUAV ushered in a new era of public interest litigation?

A pathway to justice? Katrina Pacey, Associate counsel, Ethos Law Group LLP, Vancouver
(Photo credit Venturi+Karpa)

Public interest litigants usually face a tough battle for standing, as the long fight to strike down Canada’s prostitution laws has shown. In 2008, the Supreme Court of British Columbia denied anti-violence advocate Sheryl Kiselbach and a group representing Vancouver sex workers the right to bring a suit challenging the prostitution-related provisions of the Criminal Code. Neither party was at risk of being charged under the provisions in question, the government argued.

But Kiselbach and the Downtown Eastside Sex Workers United Against Violence (SWUAV) took their case to the Supreme Court of Canada, which last fall upheld the appeal granting them public interest standing to pursue their Charter challenge.

“I try to help the women understand the enormity of their victory,” says Katrina Pacey, counsel for SWUAV. “It was a unanimous decision of the Supreme Court — very validating and important to our clients.”

The decision has implications far beyond SWUAV’s constitutional challenge to the Criminal Code. The Supreme Court ruled that the public benefit of having appropriate interest groups test such laws in court outweighs concerns that a liberal interpretation of standing might encourage frivolous legal challenges.

“It’s a comprehensive constitutional case,” says Melina Buckley. A member of the class-action practice group at Vancouver firm Camp Fiorante Matthews Mogerman, she represents one of the intervenors in the SWUAV case, the West Coast Women’s Legal Education and Action Fund. She has also been retained on other public interest cases before the top court. The Supreme Court “was clearly trying to give guidance to courts across the country and to litigants,” she says.

A patchwork of precedent

In assessing whether to grant public interest standing to a litigant, Canadian courts consider three criteria: Is the matter a serious legal issue? Does the party bringing the case have a stake in the outcome? And, is the proposed suit a reasonable and effective way of bringing the matter before the court?

"The Supreme Court acknowledged that public interest litigation can provide access to justice to the disadvantaged whose legal rights are affected."

“The courts have been criticized for an inconsistent approach on public interest standing,” says Martha Jackman, a professor of constitutional law at the University of Ottawa. “There were conflicting decisions that were hard to reconcile.”

The Supreme Court’s 1992 decision on public interest standing in Canadian Council of Churches v. Canada (Minister of Employment and Immigration) promoted the view that the third test should be interpreted rigidly, says Jackman. “That Laskin ruling said that to get public interest standing, you had to demonstrate there’s no other way to bring an issue before the courts.” However, Jackman adds, subsequent court decisions on public interest standing “often had the air of unreality” in expecting extremely vulnerable, impoverished individuals (such as refugees) to directly challenge entities (such as the immigration department) on whom their lives in Canada depend.

And yet the top court has strayed from the approach to standing laid out in the Canadian Council of Churches decision. In particular, the 2005 Chaouilli decision interpreted public interest standing very liberally, granting it to two individuals challenging restrictions on private medical practice in Quebec. In that case, Jackman says, standing was granted without regard to whether the individuals actually represented the public interest.

Five long years

In 2007, when SWUAV first launched its Charter challenge in B.C.’s Supreme Court, the trial judge held that the advocacy group met the first two tests for standing, but not the third. The group was denied public interest standing. The chambers judge ruled that individual sex workers affected by the laws should bring the Charter challenges forward, rather than their advocacy group.

Melina Buckley, Camp Fiorante

Melina Buckley, Camp Fiorante Matthews Mogerman, Vancouver
(Photo credit Venturi+Karpa)

The BCSC decision was overturned by the British Columbia Court of Appeal in 2010; that ruling, in turn, was challenged by the federal attorney-general before the Supreme Court of Canada last autumn.

In its September ruling, the Supreme Court held that courts should take a “flexible and generous” approach to public interest standing by taking into account the “practical realities” of litigation. It accepted SWUAV’s contention that it was highly unlikely that anyone charged under the prostitution-related provisions of the Criminal Code would challenge their validity under the Constitution.

The Supreme Court acknowledged that public interest litigation can provide access to justice to the disadvantaged whose legal rights are affected. It concluded that SWUAV’s role in litigating the issue was an effective way of bringing the issue to court. “A challenge of this nature,” wrote Justice Thomas Cromwell, “may prevent a multiplicity of individual challenges in the context of criminal prosecutions.”

The decision has its critics. In the SWUAV decision the Supreme Court “abandoned the need for a case to be rooted, as often as possible, in a real live dispute,” says Rainer Knopff. A professor in the University of Calgary’s school of public policy, Knopff and colleague Ted Morton argue that the courts should mainly resolve disputes rather than serve as “constitutional oracles.”

As more legislation is challenged by public interest organizations thanks to the SWUAV decision, he says, “courts will become more policy-making institutions, rather than policy-making being just a by-product of the judicial process…  It’s a dramatic change. It makes the rules of public interest standing completely discretionary.”

Access to justice

Beyond the value of this ruling to her own clients, Pacey says, it “also made a substantial contribution to access to justice for marginalized people generally.” Like Buckley, she argues that fears about public interest standing opening the floodgates to frivolous litigation are unfounded. “There are still many protections in place.” These include the high cost of mounting a challenge against governments determined to defend their legislation, and a judge’s power to award negative costs to “busybody” litigants.

Rainer Knopff, University of Calgary

Rainer Knopff, professor of political science, University of Calgary
(Photo credit Marnie Burkhart/Jazhart Studios)

Says Buckley: “The courts are not swamped right now because the court challenge program and legal aid are down… Mostly it’s the government stretching things out” in court, which is burdensome on judicial resources.

"In the SWUAV decision the Supreme Court 'abandoned the need for a case to be rooted, as often as possible, in a real live dispute.'"

The SWUAV decision “sets an important precedent for public interest standing and puts a lot more flexibility into it,” explains Buckley. “Judges have a lot of discretion” in the issue of standing. “The B.C. chambers judge took a technical approach, particularly with regard to the third step as to whether there’s a reasonable alternative to public interest standing. It’s usually the biggest hurdle. The SCC has turned that around. Before, someone could always say that someone else could bring a case forward as an individual, regardless as to whether that was realistic or practical.”

SWUAV submitted 500 pages of affidavits from 90 sex workers attesting to the conditions of their lives and why they could not risk coming forward as individuals to front a test case against the Criminal Code provisions that deeply affect their lives. “The record shows that there were no sex workers in the Downtown Eastside neighbourhood of Vancouver willing to bring a comprehensive challenge forward,” the Supreme Court noted in its decision. The court’s acceptance of SWUAV as the voice of this community “was recognition of their legal personhood. The women brought this forward as a collective,” says Buckley, who acts as policy counsel to B.C.’s Missing Women Commission of Inquiry.

More ‘standing’ cases in the works?

The SWUAV decision may open the door for other, similar motions for public interest standing in Charter test cases.

"The decision has implications far beyond SWUAV’s constitutional challenge to the Criminal Code."

Consider the Canadian Bar Association’s Charter challenge over B.C. legal aid launched in 2005. The B.C. Court of Appeal agreed with the lower court that the CBA had no reasonable cause of action, but was silent on the question of standing. The Supreme Court of Canada denied the CBA leave to appeal.

“We could probably bring a similar case today and win it based on this (SWUAV) precedent,” muses Buckley, chair of the CBA’s Legal Aid Test Case Advisory Committee. She figures that the most effective approach in Canadian courts today would be to build a “hybrid” case around individual litigants and a reputable, representative group with public interest standing.

"The most effective approach in Canadian courts today would be to build a “hybrid” case around individual litigants and a reputable, representative group with public interest standing."

As an example, she mentions that the CBA is looking for individual litigants to spearhead a challenge to B.C. family law. Similar to the SWUAV case, Buckley says, “It’s hard for people in difficult family law situations to mount this kind of case that has to do with custody, survival.”

Jackman said she expects an advocacy group may seek public interest standing to challenge the constitutionality of the federal government decision to cut medical benefits for refugees. She said standing also will be an issue in the Tanudjaja Charter challenge to federal and Ontario homelessness policies. It was launched in Ontario Superior Court in 2005 by the Centre for Equality Rights in Accommodation and four individuals including Jennifer Tanudjaja.

“A trial court judge, acting in good faith, now will look at public interest standing rather than casting about to see if an individual is able to litigate — and go have bake sales to raise money” for a case, says Jackman.

“Charter critics such as Rainer Knopff and Ted Morton have been successful in depicting judges as highly interventionist and judicial activism as anti-democratic. In fact, courts in Canada have been extremely reluctant to intervene in the area of socio-economic rights in particular, with the result that a large swath of Canadian society has been denied access to justice and the protection of the Charter.”

Kate Dunn is a freelance writer based in Ottawa.
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