On Being 'Part of the Solution': Public Interest Standing after SWUAV SCC

In September 2012, the Supreme Court of Canada (SCC) granted the Downtown Eastside Sex Workers United Against Violence (SWUAV) and former sex trade worker and anti-violence advocate Sheryl Kiselbach public interest standing to challenge the constitutionality of numerous prostitution-related provisions of the Criminal Code. SWUAV is an organization of current and former street level sex workers that, together with Ms. Kiselbach, argues that the impugned Code provisions systematically operate to prevent sex workers from taking steps to improve the health and safety conditions of their work due to the threat of criminalization. They argue that, as a result, the provisions violate sex workers’ constitutional rights to freedom of expression and association, to life, liberty and security of the person and to equality. The SCC’s judgment affirmed the 2:1 decision of the British Columbia Court of Appeal (BCCA) granting SWUAV and Ms. Kiselbach public interest standing. The BCCA majority had reversed the decision of Ehrcke J, who initially denied standing on the basis of the public interest standing test articulated in prior SCC decisions such as Canadian Council of Churches and Hy and Zel’s. SWUAV SCC not only represents a victory for SWUAV and Ms. Kiselbach, but also for access to justice for equality-seeking groups more generally. In granting public interest standing in this case, the SCC rewrote the third element in the public interest standing test, which had previously been a stumbling block to public interest group representation of the interests of members of socio-economically marginalized communities. The SCC also introduced an element of flexibility into the application of the standing test, which should enhance the capacity of courts in the future to render more fully contextualized decisions that better recognize and account for the challenging conditions in which some of the most vulnerable members of our communities live. In so doing, the SCC modeled the way in which judicial decision-making inside the courtroom can become part of the solution in addressing the access to justice crisis.

Récupéré en direct depuis OpenAlex et désinversé. Les résumés ne sont pas conservés dans cette base de données : les index inversés représentent 8,6 Go des 9,3 Go de texte de la base, et le serveur dispose de 13 Go libres.