Downtown Eastside Sex Workers win more than their right to be heard

Wednesday, September 26, 2012

By Jane Bailey and Angela Chaisson

On September 20th, the Supreme Court of Canada upheld the BC Court of Appeal’s ruling that the Downtown Eastside Sex Workers United Against Violence (“SWUAV”) and former sex trade worker and anti-violence advocate Sheryl Kiselbach have public interest standing to challenge numerous prostitution-related provisions of the Criminal Code. SWUAV and Ms. Kiselbach assert that these provisions operate systematically to prevent street level sex workers from taking steps to improve the health and safety conditions of their work due to the threat of criminalization.  In so doing, they argue that the provisions violate the free expression, free association, life, liberty and security and equality rights of sex workers.  Initially denied standing to challenge these provisions by the British Columbia Supreme Court, SWUAV and Ms. Kiselbach successfully appealed to the British Columbia Court of Appeal.  Predictably, the government chose to appeal that decision to the Supreme Court of Canada, which affirmed their standing to challenge the provisions.

The decision is a win not just for SWUAV and Ms. Kiselbach in this case, but for access to justice more generally.  In reasons delivered on behalf of a unanimous court, Cromwell J. effectively rewrote the third element of the test for public standing articulated in prior SCC decisions like Canadian Council of Churches and Hy&Zel’s, which has acted as a barrier to public interest group representation of the interests of members of socio-economically marginalized communities.

While someone new to the area might understandably believe from the first half of the reasons for judgment that the SCC simply reaffirmed an existing public interest standing test articulated in Canadian Council of Churches, the latter half of the reasons clearly demonstrates the important change the SCC has effected.  In Canadian Council of Churches, the SCC had ruled that those who seek public interest standing must demonstrate that:  (i) there exists a serious issue of invalidity of legislation or public action; (ii) they are directly affected by or have a genuine interest in the validity of the legislation or public action; and (iii) there is no other reasonable and effective manner in which the issue may be brought before the court.

The Canadian Council of Churches approach to the third criterion has proven problematic for public interest groups who seek to challenge legislation or government action on behalf of socially vulnerable groups, and was the stumbling block for SWUAV and Ms. Kiselbach at first instance.  To put it simply, the “reasonable and effective” criterion had been interpreted to suggest that if there was any possibility that an individual litigant could challenge the legislation or action the group seeks to attack, then the group should not be granted public interest standing.  The trouble with this articulation of the criterion is that, while it is true that individual sex workers charged with prostitution-related offences under the Criminal Code have a right to challenge the constitutionality of those provisions, or that refugee claimants facing removal from Canada (as in Canadian Council of Churches) are legally entitled to challenge the constitutionality of the Immigration Act, the realities of the lives of those individuals suggests it is unlikely that they would have the emotional, financial and legal resources to mount comprehensivesystemic challenges to these regimes.  Moreover, in a constitutional democracy, one might legitimately question whether it is appropriate to employ a standard that effectively foists the obligation to test the constitutionality of the nation’s laws onto the backs of some of our most socioeconomically disadvantaged community members.

In SWUAV, the SCC rewrote the problematic third criterion in a manner that should go a long way toward alleviating the equality-undermining effects of the Canadian Council of Churchesapproach. Specifically, Cromwell J. restated the third criterion as follows:  “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (para. 37).  In contrast with the Canadian Council of Churches approach, courts considering applications for public interest standing will now be required to conduct contextual analyses of the reasonableness and effectiveness of the proposed proceeding itself, rather than mechanically denying standing if any other reasonably effective method for bringing the matter before the courts can be identified.  Moreover, the Court, for the first time, provided helpful guidance onthe application of the third factor.

First, the Court stated that the third criterion should be applied “flexibly” and “in light of the need to ensure full and complete adversarial presentation and to conserve judicial resources” (para. 49).  Here, the court will be concerned to ensure that contending viewpoints on the matter will be available in the public interest proceeding, which is important in light of a fundamental purpose behind public interest standing – “ensuring lawful action by government actors” (para. 49).

Second, in examining whether the proposed public interest proceeding addresses the principles and concerns underlying the granting of public interest standing, Cromwell J. stated that courts should consider whether the proposed proceeding “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” (para. 50).  The Court highlighted the following as illustrative of the sorts of matters to be considered:

·         the capacity of the plaintiff to bring forward the claim, including consideration of their resources and expertise, as well as “whether the issue will be presented in a sufficiently concrete and well-developed factual setting” (para. 51);
·         whether the case is a “public interest” case, in that “it transcends the interests of those most directly affected by the challenged law or action”, including consideration of the fact that public interest litigation “may provide access to justice for disadvantaged persons in society whose legal rights are affected” (para. 51);
·         the existence of realistic alternatives that would more efficiently and effectively use judicial resources and provide a “context more suitable for adversarial determination” (para. 51); and
·         the potential impact of the proceedings “on the rights of others who are equally or more directly affected”, being cautious to avoid permitting “diffuse” challenges that could prejudice later challenges by parties “with specific and factually established complaints” (para. 51).

Of these considerations, the third – the examination of realistic alternatives - represents perhaps the most significant inroad on the equality-undermining approach of Canadian Council of Churches.  Specifically, the Court directs courts in the future to “take a practical and pragmatic approach” to the “reasonably effective” component of the public interest standing test, noting that although it may be relevant that there are other potential plaintiffs, including those with claims as of right, “the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities” (para. 51).  Even if other proceedings are already underway, courts must still consider whether something is to be gained from parallel proceedings and “whether the other proceedings will resolve the issues in an equally or more reasonable and effective manner” (para. 51).  This means that the courts must consider what issues are being raised and whether the party seeking public interest standing “brings any particularly useful or distinctive perspective to the resolution of those issues” (para. 51). 

In applying its new flexible approach to public interest standing to the facts of the case before it, the SCC 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, … it will also promote the economical use of scarce judicial resources” (para. 76).  Not only do the reasons reflect concern with access to justice and recognize the role that public interest litigation can play in addressing that concern, they also implicitly refute prior notions that public interest litigation is somehow inherently inefficient, ineffective or unmanageable.  Hear hear to that and hats off to SWUAV, Sheryl Kiselbach and their counsel for having the guts and determination to keep pushing the envelope on this important access to justice issue.  While reasonable people may disagree on the substance of the arguments they wish to advance in relation to the prostitution provisions, equality demands that the voices of street level sex workers be heard on this pressing social justice issue.

Jane Bailey is an Associate Professor at the Faculty of  Law, University of Ottawa.
Angela Chaisson is a feminist lawyer practicing in Toronto. She volunteered with the PIVOT Legal Society during the SWUAV challenge.  
Designed by Rachel Gold.