Standing Up for Your Rights

Standing is a legal principle that addresses who is entitled to bring a case before the court for a decision. Although standing (in a legal sense) may sound like a technical legal issue, it is very important to rights litigation in Canada. After the Canadian Charter of Rights and Freedoms (Charter) was passed in 1982, there was an increase in public interest in the outcome of constitutional cases. Courts had to impose limitations on standing to ensure that they were not overburdened with marginal or redundant cases, to screen out “busybody” litigants, and to ensure that courts could hear the various points of view of those who are most directly affected by the outcomes of legal cases (see: Finlay v Canada (Minister of Finance), [1986] 2 SCR 607 at 631).

A recent decision of the Supreme Court of Canada (SCC) provides some guidance for the courts on the issue of public interest standing. In AG (Canada) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (“DESW”), the DESW, whose objects include improving working conditions for female sex workers, and an individual who currently worked with sex workers (together) sought a declaration that sections 210 to 213 of the Criminal Code, RSC 1985 c C-46, which deal with prostitution matters, violate Charter sections 2(b) freedom of expression; 2(d) freedom of association; 7 right to life, liberty, and security of the person and 15(1) equality rights.

Justice Cromwell wrote the decision for the Supreme Court of Canada. He noted that since the advent of the Charter, a number of legal decisions had provided guidance on standing, resulting in the development of a three-factor test in public law cases. These factors are:

1. whether the case raises a serious justiciable issue;
2. whether the party bringing the action has a real stake or a genuine interest in its outcome; and
3. whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court. Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1SCR 236.

These factors are to be assessed in a “large and liberal” fashion.

The DESW case raised the issue of whether these three factors are to be treated as a rigid checklist, or rather as considerations to be taken into account when exercising judicial discretion with respect to granting standing. In Canada (Minister of Justice) v Borowski, [1981] 2 SCR 575 (a pre-Charter case), the court had phrased the third factor a little more stridently: “there is no other reasonable manner in which the issue may be brought to court” [emphasis added].

The SCC discussed the three factors.

The SCC noted that justiciability (the question is such that the court possesses the ability to provide a legal resolution to the dispute) is related to the constitutional relationship of the court to the other branches of government and also the concern about the allocation of “scarce judicial resources”. Courts that are exercising their discretion to grant standing must stay within the bounds of their proper constitutional role should analyze whether the statement of claim reveals at least one serious constitutional issue.

Whether the party bringing the action has a real stake or a genuine interest in its outcome

In DESW, the SCC held that this factor is concerned with whether “the plaintiff has a real stake in the proceedings or is engaged with the issues they raise”.

Whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.

In DESW, the SCC noted that although this factor has often been expressed as a strict requirement (e.g., “no other reasonable and effective manner in which the matter may be brought before the court”), it has not always been expressed that strictly. It listed a number of considerations that assist with interpreting the third factor in a manner that “reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area”.

1. The Court has not always expressed and rarely applied this factor rigidly;
2. This factor must be applied purposively; and
3. A flexible approach is required to consider the ‘reasonable and effective’ means factor (DESW, paras 45 to 51).

The SCC noted that the third factor should be applied in “light of the need to ensure full and complete adversarial presentation and to conserve judicial resources.” The court should have the benefit of hearing the contending views of the people who are most directly affected by the issues; 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”.

The SCC also provided an illustrative list of some examples of matters that courts could find useful when assessing the third discretionary factor. These include:

• the plaintiffs’ capacity to bring forward a claim – their resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed manner;
• whether the case is of public interest – does it transcend the interest of those most directly affected by the challenged law?
• the lack of realistic alternative means which could favour a more efficient and effective use of judicial resources; the existence of other potential plaintiffs, particularly those who would have standing as of right; will the plaintiff bring any particularly useful or distinctive perspective to the resolution of the issues? and
• the potential impact of the proceedings on the rights of others who are equally or more directly affected.

Thus, the SCC concluded that the third factor should be expressed as: “whether the proposed suit is, in all the circumstances, a reasonable and effective means of bringing the matter before the court” rather than the stricter requirement set out in Borowski.

In the circumstances of the DESW case, the SCC noted that there was generally no dispute that the action raised serious and justiciable issues.

As for the second factor, the SCC held that both the DESW and the individual applicant have a genuine interest in the outcome of the current claim and are “no busybod[ies].”

The chambers judge in the original application raised a number of concerns that weighed against granting public interest standing. The SCC dealt with each of these concerns.

• that the existence of a civil case that raises many of the same issues in another province is not necessarily a sufficient basis for denying standing. Decisions of the courts in one province are not binding on the courts in others. Further, the issues raised in Bedford are not identical to those raised in this case.
• that the existence of a potential or actual parallel claim is not conclusive to the issue of standing. The practical realities of the issues are such that it is very unlikely that these accused persons would bring a claim similar to that of DESW and the individual.
• that being a witness and a party are two different things. Sex workers in the area were not willing to bring forward a comprehensive challenge because they feared loss of privacy and safety and increased violence by clients among other concerns.

The SCC concluded that none of the three concerns raised by the chambers judge were entitled to the weight that he gave them in arriving at his decision to deny standing.

The SCC also assessed the other considerations that should be taken into account with respect to the “reasonable and effective means” factor. The parties raise issues of public importance that transcend their immediate interests. The challenge is comprehensive as it related to nearly the entire legislative scheme and may prevent a multiplicity of individual challenges. The claim is being advanced with thoroughness and skill. The presence of an individual respondent ensures that there is both an individual and a collective dimension to the case. Thus, the present litigation constitutes “an effective means of bringing this issue to court” so that it may be presented in a suitable adversarial context.

The SCC concluded that all three factors favoured the Court exercising its discretion to grant public interest standing to the DESW.

The relaxation of the third factor is a welcome change to those public interest groups who, in the past, have encountered difficulties in obtaining standing.