Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society
Collection
Supreme Court Judgments
Date
2012-09-21
Neutral citation
2012 SCC 45
Report
[2012] 2 SCR 524
Case number
33981
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
British Columbia
Subjects
Civil procedure
Notes
SCC Case Information: 33981
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524
Date: 20120921
Docket: 33981
Between:
Attorney General of Canada
Appellant
and
Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselbach
Respondents
- and -
Attorney General of Ontario, Community Legal Assistance Society, British Columbia Civil Liberties Association, Ecojustice Canada, Coalition of West Coast Women’s Legal Education and Action Fund (West Coast LEAF), Justice for Children and Youth,
ARCH Disability Law Centre, Conseil scolaire francophone de la Colombie-Britannique, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario and
Positive Living Society of British Columbia
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 78):
Cromwell J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring)
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524
Attorney General of Canada Appellant
v.
Downtown Eastside Sex Workers United Against
Violence Society and Sheryl Kiselbach Respondents
and
Attorney General of Ontario,
Community Legal Assistance Society,
British Columbia Civil Liberties Association, Ecojustice Canada,
Coalition of West Coast Women’s Legal Education and
Action Fund (West Coast LEAF), Justice for Children and
Youth, ARCH Disability Law Centre,
Conseil scolaire francophone de la Colombie-Britannique,
David Asper Centre for Constitutional Rights,
Canadian Civil Liberties Association,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
Canadian HIV/AIDS Legal Network,
HIV & AIDS Legal Clinic Ontario and
Positive Living Society of British Columbia Interveners
Indexed as: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society
2012 SCC 45
File No.: 33981.
2012: January 19; 2012: September 21.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for british columbia
Civil procedure — Parties — Standing — Public interest standing — Public interest group and individual working on behalf of sex workers initiating constitutional challenge to prostitution provisions of Criminal Code — Whether constitutional challenge constituting a reasonable and effective means to bring case to court — Whether public interest group and individual should be granted public interest standing.
A Society whose objects include improving conditions for female sex workers in the Downtown Eastside of Vancouver and K, who worked as such for 30 years, launched a Charter challenge to the prostitution provisions of the Criminal Code . The chambers judge found that they should not be granted either public or private interest standing to pursue their challenge; the British Columbia Court of Appeal, however, granted them both public interest standing.
Held: The appeal should be dismissed.
In determining whether to grant standing in a public law case, courts must consider three factors: whether the case raises a serious justiciable issue; whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court. A party seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favor granting standing. All of the other relevant considerations being equal, a party with standing as of right will generally be preferred.
In this case, the issue that separates the parties relates to the formulation and application of the third factor. This factor has often been expressed as a strict requirement that a party seeking standing persuade the court that there is no other reasonable and effective manner in which the issue may be brought before the court. While this factor has often been expressed as a strict requirement, this Court has not done so consistently and in fact has rarely applied the factor restrictively. Thus, it would be better expressed as requiring that the proposed suit be, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.
By taking a purposive approach to the issue, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality. A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing. There is no binary, yes or no, analysis possible. Whether a means of proceeding is reasonable, whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances.
In this case, all three factors, applied purposively and flexibly, favour granting public interest standing to the respondents. In fact, there is no dispute that the first and second factors are met: the respondents’ action raises serious justiciable issues and the respondents have an interest in the outcome of the action and are fully engaged with the issues that they seek to raise. Indeed, the constitutionality of the prostitution provisions of the Criminal Code constitutes a serious justiciable issue and the respondents, given their work, have a strong engagement with the issue.
In this case, the third factor is also met. The existence of a civil case in another province is certainly a highly relevant consideration that will often support denying standing. However, the existence of parallel litigation ― even litigation that raises many of the same issues ― is not necessarily a sufficient basis for denying standing. Given the provincial organization of our superior courts, decisions of the courts in one province are not binding on courts in the others. Thus, litigation in one province is not necessarily a full response to a plaintiff wishing to litigate similar issues in another. Further, the issues raised are not the same as those in the other case. The court must also examine not only the precise legal issue, but the perspective from which it is made. In the other case, the perspective is very different. The claimants in that case were not primarily involved in street-level sex work, whereas the main focus in this case is on those individuals. Finally, there may be other litigation management strategies, short of the blunt instrument of a denial of standing, to ensure the efficient and effective use of judicial resources. A stay of proceedings pending resolution of other litigation is one possibility that should be taken into account in exercising the discretion as to standing.
Taking these points into account here, the existence of other litigation, in the circumstances of this case, does not seem to weigh very heavily against the respondents in considering whether their suit is a reasonable and effective means of bringing the pleaded claims forward.
Moreover, the existence of other potential plaintiffs, while relevant, should be considered in light of practical realities, which are such that it is very unlikely that persons charged under the prostitution provisions would bring a claim similar to the respondents’. Further, the inherent unpredictability of criminal trials makes it more difficult for a party raising the type of challenge raised in this instance.
In this case, also, the record shows that there were no sex workers in the Downtown Eastside willing to bring a challenge forward. The willingness of many of these same persons to swear affidavits or to appear to testify does not undercut their evidence to the effect that they would not be willing or able to bring a challenge in their own names.
Other considerations should be taken into account in considering the reasonable and effective means factor. This case constitutes public interest litigation: the respondents have raised issues of public importance that transcend their immediate interests. Their challenge is comprehensive, relating as it does to nearly the entire legislative scheme. It provides an opportunity to assess through the constitutional lens the overall effect of this scheme on those most directly affected by it. A challenge of this nature may prevent a multiplicity of individual challenges in the context of criminal prosecutions. There is no risk of the rights of others with a more personal or direct stake in the issue being adversely affected by a diffuse or badly advanced claim. It is obvious that the claim is being pursued with thoroughness and skill. There is no suggestion that others who are more directly or personally affected have deliberately chosen not to challenge these provisions. The presence of K, as well as the Society, will ensure that there is both an individual and collective dimension to the litigation.
Having found that the respondents have public interest standing to pursue their action, it is not necessary to address the issue of whether K has private interest standing.
Cases Cited
Applied: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; discussed: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; referred to: Bedford v. Canada (Attorney General), 2010 ONSC 4264, 327 D.L.R. (4th) 52, rev’d in part 2012 ONCA 186, 109 O.R. (3d) 1; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Baker v. Carr, 369 U.S. 186 (1962); Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Skinner, [1990] 1 S.C.R. 1235; R. v. Stagnitta, [1990] 1 S.C.R. 1226; R. v. Smith (1988), 44 C.C.C. (3d) 385; R. v. Gagne, [1988] O.J. No. 2518 (QL); R. v. Jahelka (1987), 43 D.L.R. (4th) 111; R. v. Kazelman, [1987] O.J. No. 1931 (QL); R. v. Bavington, [1987] O.J. No. 2728 (QL); R. v. Cunningham (1986), 31 C.C.C. (3d) 223; R. v. Bear (1986), 47 Alta. L.R. (2d) 255; R. v. McLean (1986), 2 B.C.L.R. (2d) 232; R. v. Bailey, [1986] O.J. No. 2795 (QL); R. v. Cheeseman, Sask. Prov. Ct., June 19, 1986; R. v. Blais, 2008 BCCA 389, 301 D.L.R. (4th) 464; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Boston, [1988] B.C.J. No. 1185 (QL); R. v. DiGiuseppe (2002), 161 C.C.C. (3d) 424.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 (b), (d), 7 , 15 .
Constitution Act, 1982 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 210 to 213 .
Supreme Court Rules, B.C. Reg. 221/90 [rep. 168/2009], r. 19(24).
Authors Cited
Fiss, Owen M. “The Social and Political Foundations of Adjudication” (1982), 6 Law & Hum. Behav. 121.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book, 1994 (loose‑leaf updated December 2011, release 17).
Scott, Kenneth E. “Standing in the Supreme Court — A Functional Analysis” (1973), 86 Harv. L. Rev. 645.
Sossin, Lorne. “The Justice of Access: Who Should Have Standing to Challenge the Constitutional Adequacy of Legal Aid?” (2007), 40 U.B.C. L. Rev. 727.
Sossin, Lorne M. Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. Toronto: Carswell, 2012.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Neilson and Groberman JJ.A.), 2010 BCCA 439, 10 B.C.L.R. (5th) 33, 294 B.C.A.C. 70, 498 W.A.C. 70, 324 D.L.R. (4th) 1, 260 C.C.C. (3d) 95, 219 C.R.R. (2d) 171, [2011] 1 W.W.R. 628, [2010] B.C.J. No. 1983 (QL), 2010 CarswellBC 2729, setting aside in part a decision of Ehrcke J., 2008 BCSC 1726, 90 B.C.L.R. (4th) 177, 305 D.L.R. (4th) 713, 182 C.R.R. (2d) 262, [2009] 5 W.W.R. 696, [2008] B.C.J. No. 2447 (QL), 2008 CarswellBC 2709. Appeal dismissed.
Cheryl J. Tobias, Q.C., and Donnaree Nygard, for the appellant.
Joseph J. Arvay, Q.C., Elin R. S. Sigurdson and Katrina Pacey, for the respondents.
Janet E. Minor and Courtney J. Harris, for the intervener the Attorney General of Ontario.
David W. Mossop, Q.C., and Diane Nielsen, for the intervener the Community Legal Assistance Society.
Jason B. Gratl and Megan Vis‑Dunbar, for the intervener the British Columbia Civil Liberties Association.
Justin Duncan and Kaitlyn Mitchell, for the intervener Ecojustice Canada.
C. Tess Sheldon, Niamh Harraher and Kasari Govender, for the interveners the Coalition of West Coast Women’s Legal Education and Action Fund (West Coast LEAF), Justice for Children and Youth and the ARCH Disability Law Centre.
Written submissions only by Mark C. Power and Jean‑Pierre Hachey, for the intervener Conseil scolaire francophone de la Colombie‑Britannique.
Kent Roach and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Written submissions only by Cara Faith Zwibel, for the intervener the Canadian Civil Liberties Association.
Lorne Waldman, Clare Crummey and Tamara Morgenthau, for the interveners the Canadian Association of Refugee Lawyers and the Canadian Council for Refugees.
Written submissions only by Michael A. Feder, Alexandra E. Cocks and Jordanna Cytrynbaum, for the interveners the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario and the Positive Living Society of British Columbia.
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1] This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.
[2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).
[3] In this case, the respondents the Downtown Eastside Sex Workers United Against Violence Society, whose objects include improving working conditions for female sex workers, and Ms. Kiselbach, have launched a broad constitutional challenge to the prostitution provisions of the Criminal Code, R.S.C. 1985, c. C-46 . The British Columbia Court of Appeal found that they should be granted public interest standing to pursue this challenge; the Attorney General of Canada appeals. The appeal raises one main question: whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing. In my view, the latter approach is the right one. Applying it here, my view is that the Society and Ms. Kiselbach should be granted public interest standing. I would therefore dismiss the appeal.
II. Issues
[4] The issues as framed by the parties are whether the respondents should be granted public interest standing and whether Ms. Kiselbach should be granted private interest standing. In my view, this case is best resolved by considering the discretion to grant public interest standing and standing should be granted to the respondents on that basis.
III. Overview of Facts and Proceedings
A. Facts
[5] The respondent Society is a registered British Columbia society whose objects include improving working conditions for female sex workers. It is run “by and for” current and former sex workers living in the Vancouver Downtown Eastside. The Society’s members are women, the majority of whom are Aboriginal, living with addiction issues, health challenges, disabilities, and poverty; almost all have been victims of physical and/or sexual violence.
[6] Sheryl Kiselbach is a former sex worker currently working as a violence prevention coordinator in the Downtown Eastside. For approximately 30 years, Ms. Kiselbach engaged in a number of forms of sex work, including exotic dancing, live sex shows, work in massage parlours and street-level free-lance prostitution. During the course of this time, she was convicted of several prostitution-related offences. Ms. Kiselbach left the sex industry in 2001. She claims to have been unable to participate in a court challenge to prostitution laws when working as a sex worker because of risk of public exposure, fear for her personal safety, and the potential loss of social services, income assistance, clientele and employment opportunities (chambers judge’s reasons, 2008 BCSC 1726, 90 B.C.L.R. (4th) 177, at paras. 29 and 44).
[7] The respondents commenced an action challenging the constitutional validity of sections of the Criminal Code that deal with different aspects of prostitution. They seek 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 ss. 2 (b), 2 (d), 7 and 15 of the Canadian Charter of Rights and Freedoms . The challenged provisions are what I will refer to as the “prostitution provisions”, the “bawdy house provisions”, the “procurement provision” and the “communication provision”. Prostitution provisions is the generic term to refer to the provisions in the Criminal Code relating to the criminalization of activities related to prostitution (ss. 210 to 213 ). Within these provisions can be found the bawdy house provisions, which include those relating to keeping and being within a common bawdy house (s. 210 ), and transporting a person to a common bawdy house (s. 211 ). The procurement provision refers to the act of procuring and living on the avails of prostitution (s. 212 , except for s. 212(1) (g) and (i)), while the communication provision refers to the act of soliciting in a public place (s. 213(1) (c)). Neither respondent is currently charged with any of the offences challenged.
[8] The respondents’ position is that the prostitution provisions (ss. 210 to 213 ) infringe s. 2 (d) freedom of association rights because these provisions prevent prostitutes from joining together to increase their personal safety; s. 7 security of the person rights due to the possibility of arrest and imprisonment and because the provisions prevent prostitutes from taking steps to improve the health and safety conditions of their work; s. 15 equality rights because the provisions discriminate against members of a disadvantaged group; and s. 2 (b) freedom of expression rights by making illegal communication which could serve to increase safety and security.
B. Proceedings
(1) British Columbia Supreme Court (Ehrcke J.), 2008 BCSC 1726, 90 B.C.L.R. (4th) 177
[9] The Attorney General of Canada applied in British Columbia Supreme Court Chambers to dismiss the respondents’ action on the ground that they lacked standing to bring it. In the alternative, he applied under Rule 19(24) of the Supreme Court Rules, B.C. Reg. 221/90 (replaced by Supreme Court Civil Rules, B.C. Reg. 168/2009, effective July 1, 2010), to have portions of the statement of claim struck out and part of the action stayed on the basis that the pleadings disclosed no reasonable claim. In the further alternative, he applied for particulars which he said were necessary in order to know the case to be met (chambers judge’s reasons, at para. 2). The chambers judge dismissed the action, holding that neither respondent had private interest standing and that discretionary public interest standing should not be granted to them. In light of this conclusion, the chambers judge found it unnecessary to consider the Attorney General’s applications under Rule 19(24) and for particulars (para. 88).
[10] The chambers judge reasoned that neither the Society nor Ms. Kiselbach was charged with any of the impugned provisions or was a defendant in an action brought by a government agency relying upon the legislation. Further, the Society is a separate entity with rights distinct from those of its members. Ms. Kiselbach, he determined, was not entitled to private interest standing because she was not currently engaged in sex work and the continued stigma associated with her past convictions could not give rise to private interest standing because that would amount to a collateral attack on her previous convictions.
[11] The chambers judge turned to public interest standing and found that he should not exercise his discretion to grant standing to either respondent. He reviewed what he described as the three “requirements” for public interest standing as set out in Canadian Council of Churches and concluded that the respondents’ action raised serious constitutional issues and they had a genuine interest in the validity of the provisions. Thus, the judge held that the first and second “requirements” for public interest standing were established. He then turned to the third part of the test, “whether, if standing is denied, there exists another reasonable and effective way to bring the issue before the court” (para. 70). This, in the judge’s view, was where the respondents’ claim for standing faltered.
[12] He agreed with the Attorney General’s argument that the provisions could be challenged by litigants charged under them. The fact that members of the Society were “particularly vulnerable” and allegedly unable to come forward could not give rise to public interest standing (para. 76). Members of the Society would likely have to come forward as witnesses should the matter proceed to trial and if they were willing to testify as witnesses, they were able to come forward as plaintiffs. The chambers judge noted that there was litigation underway in Ontario raising many of the same issues: Bedford v. Canada (Attorney General), 2010 ONSC 4264, 327 D.L.R. (4th) 52, rev’d in part 2012 ONCA 186, 109 O.R. (3d) 1. He reasoned that, while the existence of this litigation was not necessarily a sufficient reason for denying standing, it tended to show that there “may nevertheless be potential plaintiffs with personal interest standing who could, if they chose to do so, bring all of these issues before the court” (para. 75). He also referred to the fact that there had been a number of cases in British Columbia and elsewhere where the impugned legislation had been challenged and that there are hundreds of criminal prosecutions every year in British Columbia in each of which the accused “would be entitled, as of right, to raise the constitutional issues that the plaintiffs seek to raise in the case at bar” (para. 77).
[13] The judge concluded that he was bound to apply the test of whether there is no other reasonable and effective way to bring the issue before the court and that the respondents did not meet that test (para. 85).
(2) British Columbia Court of Appeal, 2010 BCCA 439, 10 B.C.L.R. (5th) 33
[14] The respondents appealed, submitting that the chambers judge had erred by rejecting private interest standing for Ms. Kiselbach and public interest standing for both respondents. The chambers judge’s finding that the Society did not have private interest standing was not appealed (para. 3). The majority of the Court of Appeal upheld the chambers judge’s decision to deny Ms. Kiselbach’s private interest standing, but concluded that both respondents ought to have been granted public interest standing. The only issue on which the Court of Appeal divided was with respect to the third factor, that is, whether standing should be denied because there were other ways the issues raised in the respondents’ proceedings could be brought before the courts.
[15] Saunders J.A. (Neilson J.A. concurring), writing for the majority, found no reason for denying public interest standing. She held that this Court has made it clear that the discretion to grant standing must not be exercised mechanistically but rather in a broad and liberal manner to achieve the objective of ensuring that impugned laws are not immunized from review. The majority read the dissenting reasons for judgment of Binnie and LeBel JJ. in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, as characterizing the Charter challenge in that case as a “systemic” challenge, which differs in scope from an individual’s challenge addressing a discrete issue. To the majority, Chaoulli recognized that any problems arising from the difference in scope of the challenge may be resolved by taking “a more relaxed view of standing in the right case” (para. 59).
[16] Applying this approach, the majority considered this case to fall closer on the spectrum to Chaoulli than to Canadian Council of Churches. Saunders J.A. took the view that the chambers judge had stripped the action of its central thesis by likening it to cases in which prostitution-related charges were laid. Saunders J.A. focused on the multi-faceted nature of the proposed challenge and felt that the respondents were seeking to challenge the Criminal Code provisions with reference to their cumulative effect on sex trade workers. In the majority judges’ view, public interest standing ought to be granted in this case because the essence of the complaint was that the law impermissibly renders individuals vulnerable while they go about otherwise lawful activities and exacerbates their vulnerability.
[17] In dissent, Groberman J.A. agreed with the chambers judge’s reasoning. In his view, this case did not raise any challenges that could not be advanced by persons with private interest standing. He accepted the respondents’ position that it was unlikely that a case would arise in which a multi-pronged attack on all of the impugned provisions could take place. However, he did not consider that the lack of such an opportunity established a valid basis for public interest standing. He took the view that a very broad-ranging challenge such as the one in this case required extensive evidence on a multitude of issues and he did not find it clear that the litigation process would deal fairly and effectively with such a challenge in a reasonable amount of time. Interpreting the judgment in Chaoulli, Groberman J.A. held that the Court had not broadened the basis for public interest standing. In his view, Chaoulli did not establish that public interest standing should be granted preferentially for wide and sweeping attacks on legislation.
IV. Analysis
A. Public Interest Standing
(1) The Central Issue
[18] In Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, the majority of the Court summed up the law of standing to seek a declaration that legislation is invalid as follows: if there is a serious justiciable issue as to the law’s invalidity, “a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court” (p. 598). At the root of this appeal is how this approach to standing should be applied.
[19] The chambers judge, supported by quotations from the leading cases, was of the view that the law sets out three requirements ― something in the nature of a checklist ― which a person seeking discretionary public interest standing must establish in order to succeed. The respondents, on the other hand, contend for a more flexible approach, emphasizing the discretionary nature of the standing decision. The debate focuses on the third factor as it was expressed in Borowski ― that there is no other reasonable and effective manner in which the issue may be brought to the court ― and concerns how strictly this factor should be defined and how it should be applied.
[20] My view is that the three elements identified in Borowski are interrelated factors that must be weighed in exercising judicial discretion to grant or deny standing. These factors, and especially the third one, should not be treated as hard and fast requirements or free-standing, independently operating tests. Rather, they should be assessed and weighed cumulatively, in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes.
[21] I do not propose to lead a forced march through all of the Court’s case law on public interest standing. However, I will highlight some key aspects of the Court’s standing jurisprudence: its purposive approach, its underlying concern with the principle of legality and its emphasis on the wise application of judicial discretion. I will then explain that, in my view, the proper consideration of these factors supports the Court of Appeal’s conclusion that the respondents ought to be granted public interest standing.
(2) The Purposes of Standing Law
[22] The courts have long recognized that limitations on standing are necessary; not everyone who may want to litigate an issue, regardless of whether it affects them or not, should be entitled to do so: Canadian Council of Churches, at p. 252. On the other hand, the increase in governmental regulation and the coming into force of the Charter have led the courts to move away from a purely private law conception of their role. This has been reflected in some relaxation of the traditional private law rules relating to standing to sue: Canadian Council of Churches, at p. 249, and see generally, O. M. Fiss, “The Social and Political Foundations of Adjudication” (1982), 6 Law & Hum. Behav. 121. The Court has recognized that, in a constitutional democracy like Canada with a Charter of Rights and Freedoms, there are occasions when public interest litigation is an appropriate vehicle to bring matters of public interest and importance before the courts.
[23] This Court has taken a purposive approach to the development of the law of standing in public law cases. In determining whether to grant standing, courts should exercise their discretion and balance the underlying rationale for restricting standing with the important role of the courts in assessing the legality of government action. At the root of the law of standing is the need to strike a balance “between ensuring access to the courts and preserving judicial resources”: Canadian Council of Churches, at p. 252.
[24] It will be helpful to trace, briefly, the underlying purposes of standing law which the Court has identified and how they are considered.
[25] The most comprehensive discussion of the reasons underlying limitations on standing may be found in Finlay, at pp. 631-34. The following traditional concerns, which are seen as justifying limitations on standing, were identified: properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected by the determination of the issues; and preserving the proper role of courts and their constitutional relationship to the other branches of government. A brief word about each of these traditional concerns is in order.
(a) Scarce Judicial Resources and “Busybodies”
[26] The concern about the need to carefully allocate scarce judicial resources is in part based on the well-known “floodgates” argument. Relaxing standing rules may result in many persons having the right to bring similar claims and “grave inconvenience” could be the result: see, e.g., Smith v. Attorney General of Ontario, [1924] S.C.R. 331, at p. 337. Cory J. put the point cogently on behalf of the Court in Canadian Council of Churches, at p. 252: “It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important.” This factor is not concerned with the convenience or workload of judges, but with the effective operation of the court system as a whole.
[27] The concern about screening out “mere busybodies” relates not only to the issue of a possible multiplicity of actions but, in addition, to the consideration that plaintiffs with a personal stake in the outcome of a case should get priority in the allocation of judicial resources. The court must also consider the possible effect of granting public interest standing on others. For example, granting standing may undermine the decision not to sue by those with a personal stake in the case. In addition, granting standing for a challenge that ultimately fails may prejudice other challenges by parties with “specific and factually established complaints”: Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at p. 694.
[28] These concerns about a multiplicity of suits and litigation by “busybodies” have long been acknowledged. But it has also been recognized that they may be overstated. Few people, after all, bring cases to court in which they have no interest and which serve no proper purpose. As Professor K. E. Scott once put it, “[t]he idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom”: “Standing in the Supreme Court — A Functional Analysis” (1973), 86 Harv. L. Rev. 645, at p. 674. Moreover, the blunt instrument of a denial of standing is not the only, or necessarily the most appropriate means of guarding against these dangers. Courts can screen claims for merit at an early stage, can intervene to prevent abuse and have the power to award costs, all of which may provide more appropriate means to address the dangers of a multiplicity of suits or litigation brought by mere busybodies: see, e.g., Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 145.
(b) Ensuring Contending Points of View
[29] The second underlying purpose of limiting standing relates to the need for courts to have the benefit of contending points of view of the persons most directly affected by the issue. Courts function as impartial arbiters within an adversary system. They depend on the parties to present the evidence and relevant arguments fully and skillfully. “[C]oncrete adverseness” sharpens the debate of the issues and the parties’ personal stake in the outcome helps ensure that the arguments are presented thoroughly and diligently: see, e.g., Baker v. Carr, 369 U.S. 186 (1962), at p. 204.
(c) The Proper Judicial Role
[30] The third concern relates to the proper role of the courts and their constitutional relationship to the other branches of government. The premise of our discretionary approach to public interest standing is that the proceedings raise a justiciable question, that is, a question that is appropriate for judicial determination: Finlay, at p. 632; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 90-91; see also L. M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at pp. 6-10. This concern engages consideration of the nature of the issue and the institutional capacity of the courts to address it.
(3) The Principle of Legality
[31] The principle of legality refers to two ideas: that state action should conform to the Constitution and statutory authority and that there must be practical and effective ways to challenge the legality of state action. This principle was central to the development of public interest standing in Canada. For example, in the seminal case of Thorson, Laskin J. wrote that the “right of the citizenry to constitutional behaviour by Parliament” (p. 163) supports granting standing and that a question of constitutionality should not be “immunized from judicial review by denying standing to anyone to challenge the impugned statute” (p. 145). He concluded that “it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication” (p. 145 (emphasis added)).
[32] The legality principle was further discussed in Finlay. The Court noted the “repeated insistence in Thorson on the importance in a federal state that there be some access to the courts to challenge the constitutionality of legislation” (p. 627). To Le Dain J., this was “the dominant consideration of policy in Thorson” (Finlay, at p. 627). After reviewing the case law on public interest standing, the Court in Finlay extended the scope of discretionary public interest standing to challenges to the statutory authority for administrative action. This was done, in part because these types of challenges were supported by the concern to maintain respect for the “limits of statutory authority” (p. 631).
[33] The importance of the principle of legality was reinforced in Canadian Council of Churches. The Court acknowledged both aspects of this principle: that no law should be i