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Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselback v. The Attorney General of Canada

This case involves a constitutional challenge to the Criminal Code provisions making adult prostitution illegal. A trial was set for February 2009, but the BC Supreme Court determined that the plaintiffs did not have standing to bring the claim. SWUAV successfully appealed to the B.C. Court of Appeal on the issue of public interest standing. The BCCLA intervened at both the Court of Appeal and Supreme Court of Canada. The BCCLA argued that a restrictive reading of the public interest standing test will seriously impact the ability of public interest organizations to remedy constitutional wrongs through litigation. Rather, the current test for granting public interest standing should be expanded to bring Canada in line with other jurisdictions and to promote access to justice.

In an unanimous decision, the Court affirmed that a “purposive, flexible and generous” approach must be taken to granting public interest standing, and clarified that the third factor in the public interest standing analysis “should be expressed as: whether the proposed suit is, in all of the circumstances, a reasonable and effective means of bringing the matter before the court”. In setting out examples of matters to take into consideration when assessing this factor, the Court recognized that “one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected”.

Argument

Judgment

The BCCLA was represented by Jason Gratl of Gratl Purtzki and Megan Vis-Dunbar, Barrister and Solicitor.

Supreme Court of Canada