Access to Justice Given a Boost by Downtown Eastside Sex Workers Case.

AuthorMcKay-Panos, Linda

In Downtown Eastside Sex Workers United Against Vioience Society v Canada (Attorney General), 2012 SCC 45 (DESW), the Supreme Court of Canada (SCC) adapted the rule on public interest standing. This resulted in the potential for better access to justice, especially for vulnerable peoples who may not otherwise have heard their issues addressed by a court.

History of Standing

"Standing" means that, in order to participate in a lawsuit (stand before the court and advocate for their position), a person must have a sufficient interest in the issues brought forward.

The Canadian civil litigation system is premised on the norm of "private standing" or "standing as of right". This means that individual litigants will come to court raising grievances personal to them (for example, they were injured in a car accident and are suing for damages).

Private standing has traditionally been viewed as the best way to operate our court system because:

* it prevents mere "busybodies" from using up scarce judicial resources;

* it ensures contending points of view are raised by those personally invested in the outcome of the case; and

* it preserves the proper role of courts and their relationship to the other branches of government.

Beginning in 1974 and only in limited circumstances, the SCC allowed litigants without a direct stake to proceed under public interest standing (see Thorson v Attorney General of Canada, [1975] 1 SCR 138). Over the next couple of decades, the law of public interest standing evolved. Then, in 1992, the

SCC set out a three-step test for public interest standing in Canadian Council of Churches v Canada (Minister of Em p by ment and Immigration), [1992] 1 SCR 236:

  1. There is a serious issue to be tried.

  2. The plaintiff is directly affected by the law or action or has a genuine interest in the issue.

  3. There is no other reasonable and effective way to bring the matter before court.

    The third requirement was restrictive and often prevented groups from being granted public interest standing. For example, in Canadian Bar Association (CBA) v British Columbia, 2008 BCCA 92, the CBA challenged government cuts to the legal aid system in British Columbia. The British Columbia Supreme Court held that the CBA lacked standing to bring the claim in part because lawyers would gain by the potential rise in legal fees paid to them with an increase in legal aid fees, and there were other reasonable and effective ways to bring the matter before the court...

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