A British Columbia Court of Appeal’s ruling that a group of former and current sex workers should have access to the courts to bring their constitutional challenge to the laws surrounding the selling of sex breathes life into substantive equality guarantees.
The Downtown Eastside Sex Workers United Against Violence Society is an organization of current and former sex workers who banded together and brought a constitutional claim, not as individuals, but in their corporate identity, along with an individually named former sex worker, Sheryl Kiselbach. Their challenge was to all Criminal Code provisions dealing with prostitution as being contrary to their rights under the Charter of Rights and Freedoms, including: life, liberty, and security of the person (s. 7); equality (s. 15); and freedoms of expression and association (s. 2).
Before they had a chance to argue their case, the federal Crown brought a motion to strike the claim, arguing that neither of the plaintiffs had either private or public interest standing.
Public interest standing is granted where a serious issue has been raised by a party with a direct or genuine interest and where there is no reasonable and effective alternative for the issues to come before the court. The chambers judge found the plaintiffs easily satisfied the first two steps, but failed on the third, primarily because he found there was another way for the case to come to the court: either through a constitutional defence to a criminal prosecution or through a civil case launched by an individual sex worker.
West Coast LEAF argued that by finding there were reasonable and effective alternatives to these plaintiffs bringing this claim, the chambers judge ignored the lived reality of women affected by prostitution laws.
The evidence shows women involved in the survival sex trade often start selling sex as minors, having previously experienced sexual assault and/or drug addiction, having dropped out of school at a young age, often ending up on Vancouver’s Downtown Eastside, struggling with addiction, poverty, racism, and the daily fear of sexual and physical violence.
West Coast LEAF joined the plaintiffs in arguing the chambers judge erred in finding that individual women belonging to this marginalized group could reasonably be expected to bring an effective constitutional challenge to the prostitution laws. Public interest standing is a necessary tool for ensuring such challenges gain access to the courts.
The majority of the Court of Appeal disagreed with the chambers judge on the issue of public interest standing (although agreed on private interest standing).
The court found there was no other reasonable and effective means for this matter to get before the courts. The chambers judge erred by failing to fully account for the systemic and comprehensive nature of the constitutional challenge in question.
The Court of Appeal noted a generous approach to public interest standing is necessary in appropriate s. 15 equality claims: “Where, as here, the essence of the complaint is that the law impermissibly renders individuals vulnerable while they go about otherwise lawful activities, and exacerbates their vulnerability, the law on standing does not require the challenge to be by a person with private interest standing.”
This case is significant because it upholds a broad, purposive interpretation of the test for public interest standing consistent with the Charter value of equality, international human rights treaties, and the fundamental constitutional guarantee of access to justice.
Such a purposive and generous application of the public interest standing test requires courts to turn their minds to apply the constitutionally mandated equality lens as an integral part of each of the three steps in the public interest standing test. To do otherwise is to make the public interest standing test into an additional barrier to equal access to justice for vulnerable and disadvantaged groups.
This case is fundamentally about access to justice. Without standing before the courts, these plaintiffs would not have had the opportunity to air their important constitutional concerns, and would have been denied the human right to access mechanisms of justice.
Regardless of one’s perspective on the constitutionality of the prostitution laws, surely preventing undeniably vulnerable women from speaking to the courts about their concerns for their own safety and equality must be seen as an infringement of human dignity and a denial of fundamental justice. Restrictions on access to justice in these and similar circumstances is contrary to the rule of law. How can we claim that our society is ruled by universally applicable, knowable laws if our most vulnerable citizens are denied access to the very decision-makers that determine the validity and applicability of laws that govern their lives?
The Court of Appeal decision indicates the value the court places on airing constitutional concerns, particularly equality claims, and the nuanced approach the court will take to standing issues raised in the context of systemic challenges. This decision is a victory for equality seekers and legal system alike.
Kasari Govender is the legal director at West Coast LEAF where she manages the organization’s law reform and litigation initiatives. She represented West Coast LEAF, along with co-counsel Melina Buckley, in its intervention in the appeal of SWUAV v. Canada. Before joining West Coast LEAF, Kasari practised constitutional, equality, and aboriginal law.