Access to justice in a post-SWUAV courtroom.

• Author: Burton, Sarah

In September 2012, the Supreme Court of Canada significantly changed the law on public interest standing. It did so under the banner of advancing access to justice. After being released, Canada (AG) v Downtown Eastside Sex Workers United Against Violence, 2012 SCC 45 [SWUAV] received praise for making Charter litigation reachable to vulnerable groups who could not otherwise access the justice system. After providing a brief refresher on the SWUAV decision, this article examines whether the decision has lived up to its promise. Subsequent case law reveals that, while SWUAV's full potential has yet to be realized, its early development is a reason for optimism among access to justice advocates.

The SWUAV Decision

SWUAV asked if a community group focused on protecting sex workers had standing to challenge the prostitution provisions in the Criminal Code. Justice Cromwell, speaking for the unanimous Supreme Court, agreed with the Court of Appeal that public interest standing should be granted. In doing so, however, he inserted a critical change into the last stage of the traditional three-part test. While the classic test asked if "there is no other reasonable and effective manner" to bring the case to court, SWUAV modified the question to ask if public interest standing "is a reasonable and effective manner" to bring the issue to court. In making this determination, a number of contextualized, non-determinative factors can be considered (SWUAV at para 51).

While this change may seem trivial, make no mistake--it is powerful. This seemingly innocuous modification removed the most significant hurdle faced by public interest litigants since the 1992 decision in Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236 [3] [Canadian Council]. Prior to SWUAV, the very idea that a potential--even hypothetical--private litigant existed could (and often did) defeat otherwise compelling public interest suits from proceeding. The circumstances and restrictions faced by these hypothetical private litigants were not considered in any consistent manner.

The rationale for the Court's change of heart is equally compelling. Justice Cromwell, a known advocate on the topic, expressed public interest standing as an access to justice issue (SWUAV at para 51):

Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in...