Lowering the Bar for Standing in Public Interest Cases

by Bennett Jones LLP

[authors: Ranjan K. Agarwal and Carlo J. di Carlo]

On September 21, 2012, the Supreme Court of Canada released its decision in Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, a case dealing with the law of public interest standing in constitutional cases. The court’s decision appears to lower the bar for standing, which might make it easier for non-governmental organizations and other third parties to initiate constitutional claims.

The Downtown Eastside Sex Workers United Against Violence Society (SWUAV) commenced an action challenging the constitutional validity of sections of the Criminal Code that deal with different aspects of prostitution. SWUAV seeks a declaration that these provisions violate the rights of free expression and association, to equality before the law and to life, liberty and security of the person guaranteed by the Canadian Charter of Rights and Freedoms.

In 1981, the Supreme Court of Canada established a three-part test for public interest standing:

  • Is there a serious justiciable issue as to the law’s invalidity?
  • Is the party seeking standing either directly affected by the law or does he or she have a genuine interest as a citizen in the validity of the legislation?
  • Is there no other reasonable and effective manner in which the issue may be brought before the court?

In this case, the British Columbia courts accepted that SWUAV raised a substantial or important constitutional issue that was not frivolous. As such, there was a serious justiciable issue. The courts also accepted that SWUAV had a genuine interest in the claim—in the Supreme Court’s words, it was “fully engaged with the issues”.

The issue in dispute was whether there was another reasonable and effective way to bring the constitutionality of the prostitution provisions before the court. The British Columbia Supreme Court refused standing to SWUAV. It held that litigants charged under the provisions could challenge the laws as unconstitutional. Alternatively, a companion case in Ontario (Bedford v Canada (AG)) demonstrated that potential plaintiffs with personal interest standing could bring these issues before the court. The British Columbia Court of Appeal disagreed. In its view, this case raises systemic issues, which are different in scope from an individual challenge. It granted standing to SWUAV.

The Supreme Court agreed with the Court of Appeal that SWUAV’s claim should proceed. It found that the motion judge applied the test for public interest standing too rigidly in that he required SWUAV to show no other means for litigating the issues. Instead, the motion judge should have applied a more purposive, flexible and discretionary approach that balances scarce judicial resources with the principle that state action should conform to the Constitution. In doing so, the court should consider:

  • the plaintiff’s capacity to bring forward a claim
  • whether the case is of the public interest
  • whether there are realistic alternative means to challenge the provision; and
  • the potential impact of the proceeding on the rights of others who are equally or more directly affected.

As the Supreme Court noted, the test for standing has not “always been expressed and rarely applied so restrictively.” As such, motion judges have been using the purposive and flexible approach in standing cases notwithstanding the rigid language of the legal test. Thus, it is unclear whether this decision will open the “floodgates” in constitutional and public interest litigation. At least for SWUAV though, its claim can proceed, which may lead to more claims of this type.

Ranjan Agarwal, along with Robert Staley, Derek Bell and Stephen Libin, were counsel to interveners in Bedford v Canada (AG) in the Superior Court of Justice and the Court of Appeal.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.