The Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO) and Positive Living BC applaud a unanimous decision of the Supreme Court of Canada to grant the Downtown Eastside Sex Workers United Against Violence Society (SWUAV) and Sheryl Kiselbach public interest standing to launch a Charter challenge to prostitution-related provisions of the Criminal Code.
You can see the Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society decision on the website of the Supreme Court of Canada: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/10006/index.do.
In 2007, SWUAV – an organization run by and for street-based sex workers in Vancouver’s Downtown Eastside – and Ms. Kiselbach – who worked as a sex worker for 30 years – filed a constitutional challenge to those Criminal Code provisions. The federal government opposed their move on the basis that neither had the right to challenge the law, because neither was at risk of being charged under those provisions.
In 2008, the B.C. Supreme Court agreed with the government, deciding that neither SWUAV nor Ms. Kiselbach should be granted either public or private interest standing to pursue their challenge. That decision was reversed by the B.C. Court of Appeal, which granted both SWUAV and Ms. Kiselbach public interest standing.
The case was appealed to the Supreme Court of Canada, where the Canadian HIV/AIDS Legal Network, HALCO and Positive Living BC intervened, arguing that people living with and affected by HIV face various forms of socio-economic marginalization, which results in both special vulnerability to constitutional violations and difficulty in accessing the courts to seek protection and redress. Therefore, the test for public interest standing should be liberalized.
The Supreme Court held that a “flexible and generous” approach should be taken to public interest standing. In particular, it noted that courts should consider the “practical realities” of litigation, such that it is “very unlikely” that a person charged under the prostitution-related provisions would challenge those laws. The Supreme Court also acknowledged that public interest litigation may “provide access to justice to disadvantaged persons in society whose legal rights are affected.” In its view, the present litigation constituted an effective means of bringing the issue to court and granted SWUAV and Ms. Kiselbach public interest standing.
The ruling means that SWUAV and Ms. Kiselbach can return to the B.C. Supreme Court to pursue the case it launched five years ago – challenging the criminalization of sex work in Canada. On a broader level, this decision facilitates access to the courts for marginalized people, including people living with and affected by HIV, who wish to bring human rights claims before the courts through public interest organizations to defend and promote their rights.