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Shelina Ali
Upholding the rights of marginalized groups through public interest litigation

| February 28, 2013
Upholding the rights of marginalized groups through public interest litigation

Canada's human rights record has come under fire over the past several months. In December of 2012, Amnesty International released a highly critical report of the state of human rights in Canada. The report details abuses against vulnerable groups in Canada including indigenous peoples, women, migrant workers and refugees.

Amnesty International notes in its report that "support for strong advocacy and diverse, including dissenting, views in debates and discussion of important public policy issues is being dramatically undermined and rapidly dismantled [in Canada]."

This month, Human Rights Watch published a report detailing police abuses against indigenous women and girls in Northern British Columbia. The report found that Canada was not meeting its obligations under international law to address violence against indigenous women and girls.

With the Canadian government under fire for failing in protecting and promoting fundamental human rights in Canada, are there legal avenues that may be available to uphold the rights of marginalized persons, rights enshrined in the Canadian Charter of Rights and Freedoms

In September 2012, the Supreme Court of Canada released its decision in Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kieselbach v. Canada (Attorney General) [SWUAV]. The decision clarifies Canadian courts' discretion in granting standing to public interest groups to pursue litigation aimed at protecting the rights of vulnerable groups in Canada. 

The issue of standing is central to any legal action. Generally, a party bringing a matter to court must have a personal interest or stake in the litigation. This personal interest or stake gives the party standing. The exception to this requirement is where the party is a public interest litigant. Public interest litigation allows an individual or group to gain standing to bring a matter before the court, even if the party does not have a personal interest or stake in the matter.

In SWUAV, SWUAV and Sheryl Kieselbach launched an action challenging the constitutionality of prostitution provisions in the Criminal Code. They seek a declaration from the court that the prostitution provisions in the Criminal Code violate a person's right to freedom of expression and association, equality before the law, and life, liberty and security, all fundamental rights under the Charter.

The Attorney General of Canada (AG) opposed the challenge on the grounds that SWUAV and Kieselbach did not have standing to bring the application. The Attorney General argued that Bedford v. Canada (AG), litigation initiated by three sex workers in Ontario, demonstrated that it was possible for an individual with a personal interest or stake in a constitutional challenge, to bring a similar legal proceeding. Further, there were many criminal prosecutions under the challenged provisions that would allow the constitutionality issue to be raised.

The Supreme Court, relying on Canadian Council of Churches v. Canada (Minister of Employment and Immigration), stated that a court must consider three factors when assessing whether to grant public interest standing to a potential litigant. These factors are: whether there is a serious issue that could be litigated before the courts; whether the proposed litigant has a real stake or genuine interest in the outcome of the litigation; and whether the proposed lawsuit is a "reasonable and effective way" to bring the matter before the courts.

The Supreme Court clarified that far from being a rigid checklist of requirements that must be met in order to grant public interest standing to a party, "the factors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes."

The Supreme Court focused its analysis on the third factor, whether the public interest litigation was a reasonable and effective way of bringing the matter before the court. 

It emphasized that existing litigation, such as the Bedford case, does not automatically prove that there is a more reasonable and effective means to pursue the proposed public interest litigation. Although the precise legal issue in both actions, namely the constitutional validity of the prostitution provisions in the Criminal Code, is the same, the legal issue was being raised from different perspectives. The litigation in SWUAV, unlike the Bedford challenge, focused on the implications of the Criminal Code provisions for street‑level sex workers. The difference in perspective between two parallel litigations is a relevant consideration in determining whether the proposed public interest litigation is reasonable and effective. 

In assessing reasonableness and effectiveness of the litigation, the Supreme Court also recognized the difficulty marginalized groups have in accessing the justice system. For the court in SWUAV, the issue that must be addressed is not whether there exists an individual litigant who could bring a constitutional challenge, but whether it is realistic to expect an individual litigant, especially one who is a marginalized and vulnerable person with limited access to resources, to bear the burden of challenging potentially unconstitutional legislation or government action.    

By recognizing how difficult it is to access the justice system and by providing a flexible meaning of what constitutes a reasonable and effective means of bringing a constitutional challenge, the SWUAV decision may create space for greater public interest litigation on behalf of marginalized individuals.  

The real challenge in taking advantage of the flexible approach to public interest standing is accessing resources that would allow public interest organizations to pursue litigation on behalf of marginalized individuals and groups. As noted by Amnesty International, the end of the Court Challenges Program was a blow to pursuing charter litigation, a gap that has not been filled by new funding commitments from the federal government.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

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