On Thursday, January 19th, UofT Law professors Kent Roach and Cheryl Milne intervened on behalf of the David Asper Centre for Constitutional Rights on the Supreme Court case of the Attorney General of Canada v Downtown Eastside Sex Workers United Against Violence Society, et al.
The David Asper Centre advocated for changes to the current test for public standing – a test that has been heavily criticized by opponents as being overly strict and needlessly rigid. Renowned Toronto-based lawyer Douglas Elliot refers to charter litigation as “the Dom Perignon that’s locked behind the door at the LCBO.” The ‘lock’ analogy refers to not only significant financial burdens placed on potential claimants, but also to the barriers posed by the test for public standing.
The case originated in British Columbia as a constitutional challenge levied towards a variety of criminal provisions against prostitution (similar to the Bedford case in Ontario, although slightly different in substance and scope). However, the Attorney General successfully petitioned for the case to be dropped for lack of standing. The plaintiffs went all the way to the Supreme Court to try and get standing, while offering the Court a chance to revisit the much-maligned Canadian Council of Churches test for public interest standing.
Canadian Council of Churches lays out a three-part test for the granting of public interest standing: (1) there must be a serious issue of invalidity of legislation, (2) the plaintiff must be directly affected by the legislation or have a genuine interest in its validity, and (3) there must be, on the balance of probabilities, no other reasonable and effective way to bring the issue before the Court.
Most of the ire has been directed towards the third prong of the test, which has the effect of denying standing for many public interest organizations, because an individual claimant would always be preferred. The third prong has also had the unintended effect of bogging down the courts with lengthy and expensive preliminary litigation, as was the case here with the Sex Workers Society being frustrated from making their substantive claims in Court. The Society asked for a relaxation of the third prong to take into account financial and contextual burdens on claimants, particularly for the systemically vulnerable.
The David Asper Centre proposed an innovative approach, emphasizing the “right of the citizenry to constitutional behaviour by its government.” Furthermore, the Centre proposed that remedies should play a part in determining standing, since section 24(1) remedies are personal in nature as opposed to section 52(1) remedies which are systemic in nature and go to the heart of the constitutional validity of legislation.
For now though, all public interest groups, including the embattled sex workers who have travelled all the way across the country, wait with bated breath on the Supreme Court’s verdict.