SCC prostitution case could set new test for public interest standing

The decision by the Supreme Court of Canada to grant leave in a British Columbia case on Canada’s prostitution laws could lead to a new legal test for public interest groups seeking to challenge the constitutionality of government legislation.

The appeal, likely to be heard in the fall, has already raised concerns that it will be even more difficult to test government legislation. At the same time, the federal government is warning the B.C. ruling could lead to courts being overrun with these proceedings.

The Supreme Court agreed this spring to hear a federal government appeal of a B.C. Court of Appeal decision that granted standing to a retired sex worker and an advocacy group to challenge some of the country’s prostitution laws.

At the time, media widely reported the leave decision as one of the Supreme Court agreeing to hear the challenge of the prostitution law. In fact, the appeal isn’t about the merits of the challenge at all but the test for granting public interest standing.

“This is a very significant case,” notes Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto and co-author of the legal text Constitutional Litigation in Canada. The test for public interest standing “is a very important boundary line between courts and government,” says Lokan.

The federal government echoed the significance of the upcoming appeal in its written arguments seeking leave. If the majority decision of the B.C. Court of Appeal is allowed to stand, “the gateway swings open” for a wide range of constitutional challenges by public interest groups.

“It is difficult to imagine circumstances in which public interest standing will not be appropriate when a systemic claim is advanced,” wrote the federal government in its leave argument.

A trilogy of Supreme Court cases three decades ago set out the present test for public interest standing.

In granting anti-abortion advocate Joseph Borowski the right to challenge certain Criminal Code provisions on behalf of an unborn fetus, the majority ruled in 1981 that there was “no other reasonable and effective manner” in which the issue could be brought before a court.

Justices Bora Laskin and Antonio Lamer disagreed with the majority and stated that someone must have a direct interest in the legislation to be granted standing.

Courts are not supposed to “answer questions in the abstract merely to satisfy a person’s curiosity or perhaps his or her obsessiveness with a perceived injustice in the existing law,” wrote Laskin.

The third part of the test in Minister of Justice v. Borowski, whether there is “no other reasonable and effective manner” for a court to adjudicate the constitutionality of a law, “is usually the battleground” over whether to grant public interest standing, says Lokan.

The federal government, in adopting the views of the minority in Borowski, argued that the retired sex worker and advocacy group shouldn’t have been granted standing because they don’t have a direct interest in the prostitution laws.

But the majority decision by the B.C. Court of Appeal suggested there should be a “more relaxed view of standing” if a constitutional challenge involves a “systemic” issue.

The concerns expressed by the federal government that this will lead to flood of challenges “is likely overstated,” says Joseph Arvay, the lawyer representing the retired sex worker and advocacy group. The expense of these types of applications is already a formidable obstacle, Arvay observes.

“This is an access-to-justice issue. We would like a more liberal law of standing,” he says.
Last fall, Superior Court Justice Susan Himel determined the issue of standing differently in the ongoing constitutional challenge to the prostitution laws in Ontario.

Private interest standing was granted to the three applicants because they were either still involved in the sex trade or intended to return to that profession.

They weren’t granted public interest standing because there was already another “reasonable and effective manner” to hear the case, said Himel.

The requirement that an individual must be directly affected by government legislation, such as the possibility of being charged criminally, is a “public policy problem,” says Lokan.

“There is a powerful argument that you should not be penalized [when seeking standing] because you did not go out and commit a crime,” he says.

Several public interest groups and provincial governments are expected to seek intervener status when the Supreme Court ultimately hears arguments in the B.C. case. As well, Supreme Court Justice Thomas Cromwell is likely to play an important role in the court’s decision.

The former law professor wrote a legal text about the law of standing in Canada in 1986 when he taught at Dalhousie University.

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