standing – Double Aspect

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.

But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.

The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

A Bad Case

As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in this case here, and commented on the Federal Court’s decision rejecting the government’s motion to strike here.) Full disclosure, before going any further: I have spoken to Mr. Alani about this case, and made some comments on the draft of his own Memorandum of Fact and Law. Whether this makes me biased, you be the judge.

The government makes four arguments for dismissing Mr. Alani’s challenge. First, it says that he does not deserve to be granted public interest standing to pursue it. Second, the claim is, in its view, non-justiciable, because it requires the court to enforce a constitutional convention. Third, even if justiciable, the issue is not within the jurisdiction of the federal court. And fourth, when it comes to the actual merits, the Prime Minister has “broad discretion” as to the timing as well as the contents of his advice.

Note what’s missing here: an actual claim that s. 32 of the Constitution Act, 1867 doesn’t require the appointment of Senators. It’s blindingly clear that it does, and much of the government’s argument is devoted to directing the Court’s attention away from this simple truth. That said, all truths are not to be told by courts generally, and by the Federal Court of Canada specifically, and the government’s arguments on justiciability and, perhaps especially, jurisdiction are serious, albeit presented in a rather misleading way.

The standing argument is more difficult to take seriously. The test for granting a person public interest standing (i.e. the ability to pursue a claim that has no impact on his or her own legal rights) is explained in the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. There must be a serious justiciable issue ― a point that is treated separately in the government’s submissions (and presumably always will be if it is a live issue in a case, which makes me wonder whether it even should be treated as part of the standing inquiry). The claim must be a reasonable and effective means of getting the issue before the courts. This is normally the most contentious part of the test, but here, the government’s submissions have little to do with the usual inquiry into the existence of alternative ways of getting the issue litigated. They focus, rather, on the other element of the standing test, which asks whether the claimant has a genuine interest in the issue. The government makes much of the the fact that Mr. Alani hadn’t taken an interest in the question of Senate vacancies for any length of time before launching his application. In its submission, this makes him “a ‘busybody’ as the term is defined in the jurisprudence,” [39] a person who doesn’t really care about the issue, and thus undeserving of representing the public interest.

This argument is really beside the point, however. The policy of not appointing Senators is new and unprecedented. Nobody can have demonstrated a long-standing interest in it, because it did not exist, or at least hadn’t been publicly announced, until last winter. Mr. Alani became interested in it as soon as it was possible for anyone to do so. The government’s argument amounts to a suggestion that nobody can bring a public interest court challenge to an unconstitutional government policy for some undefined time after it is put in place, because doing so makes the claimant a “busybody.” This is absurd. As for Mr. Alani himself, right or wrong, he has made a difficult argument very seriously; he has invested a considerable amount of time and effort into it; he doesn’t just come to court with a vague sense of grievance; he has also, I have argued, taken his role as a (self-appointed) representative of the public with more seriousness than most public-interest litigants, or for that matter the government itself, tend to do. In the absence of any other, more effective, vehicle for getting the issue adjudicated, his challenge deserved to be addressed substantively, and not dismissed for lack of standing.

The government’s argument on justiciability is that Mr. Alani “seeks … judicial enforcement of the Prime Minister’s role in Senate appointments.” [45] Courts, according to orthodox constitutional theory, are not in the business of enforcing constitutional conventions, and thus they should not adjudicate Mr. Alani’s claim. Nor is the Supreme Court’s recognition in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, of the existence of a “constitutional architecture” enough to make conventions justiciable.

As I have indicated above, I think that the justiciability issue is a serious one, but not exactly for the reasons the government suggests. Indeed, I think that it is somewhat misleading to describe Mr. Alani’s claim as seeking the enforcement of a convention. Convention says that the Governor General appoints Senators on the Prime Minister’s advice, and not on his own initiative. It eliminates the discretion that the text of the Constitution Act, 1867 seems to give to the Governor General. If the Governor General decides to appoint Senators on his own, without waiting for the Prime Minister’s advice, and the Prime Minister tries to block those appointments, that would indeed be an attempt to enforce a convention. What Mr. Alani is asking for is something else. He wants the Prime Minister to be told that he must advise the Governor General ― not the Governor General to be told that he must follow the Prime Minister’s advice. The duty Mr. Alani is asking the court to enforce is not the Governor General’s, but the Prime Minister’s.

This is, admittedly, a novel claim, and it raises two issues: does the duty in question exist at all, and if so, what is its nature? Contrary to the government’s submissions, I think that the notion of constitutional architecture is pertinent here. The architecture of our system of responsible government involves an advice-giving Prime Minister (in some situations, including Senate appointments) and cabinet (in others). When the relevant actors are refusing to give advice to the Governor General, they are undermining this architecture. This is particularly so when the advice in question is necessary for the Governor General to legitimately perform a clear constitutional duty, such as the appointment of Senators. For this reason, I think that it is quite clear that the Prime Minister does indeed have a duty to advise the Governor General to make Senate appointments. And, while this is less clear, I think that taking the notion of constitutional architecture seriously requires us to conclude that this duty is indeed a legal one.

The federal government’s strongest argument, in my view, is the one about the jurisdiction of the Federal Court, which is only empowered to review decisions of bodies acting pursuant to an Act of Parliament or a Crown prerogative. The government contends that the Prime Minister, in his advice-giving capacity, is not such a body. The heart of Mr. Alani’s argument on this point is his submission that

[i]In the case of Senate appointments, the Governor General enjoys the Crown prerogative power to summon and receive advice from the Prime Minister. The Prime Minister, in turn, has jurisdiction to advise “by a prerogative of the Crown.”

The government’s response is that “[t]he advice is simply provided pursuant to a constitutional convention” [75] ― otherwise, it says, the advice would be binding on the Governor General.

I think this is a difficult question. On the one hand, it’s not obvious to me that if the Governor General has the prerogative to summon advisers and receive and advice (as he does), the advice he receives is given “by” that prerogative. On the other, I think the government is wrong to claim that the non-binding nature of the advice shows that it is strictly conventional in nature. Convention that makes the advice binding, but it does not follow from that that the advice itself is given pursuant to a conventional, rather than a legal obligation. Indeed, as I suggest above, I believe that the Prime Minister does have a legal obligation to provide advice on Senate Appointments ― but again, I’m not sure that this is enough to make this advice into one given “by a prerogative of the Crown,” rather than a duty directly imposed by the constitution, over which, as the government argues, the Federal Court would lack jurisdiction (so that Mr. Alani would have to bring a new case in a provincial superior court if he wants the matter adjudicated).

Finally, on the substantive issue in Mr. Alani’s challenge, the government argues that the remedy he seeks, namely a declaration that Senate vacancies must be filled “within a reasonable time” is too vague to be granted, and that there is no constitutional convention limiting the time a Prime Minister can take to recommend an appointment. The matter is one in which the Governor General (and, presumably, the Prime Minister) has a “wide discretion.” [89]

One thing that comes to mind in response is Justice Rand’s famous statement in Roncarelli v. Duplessis, [1959] SCR 121, that “In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” (140) The context is not quite the same ― we’re not talking about economic regulation or even administrative law, but the warning is apposite. The Governor General does, undoubtedly, have some discretion, perhaps wide discretion, in complying with s. 32 of the Constitution Act, 1867, because a Senate appointment is, or should be, a serious political decision which may reasonably take some time. But this discretion cannot be abused in every which way a Prime Minister thinks expedient.

And, once again, the government’s emphasis on (non-existent) conventions is rather beside the point. The issue here is not that some one vacancy has gone unfilled for too long. It is that the Prime Minister has announced a policy of not filling them at all. If the existence of a constitutional convention cannot overturn clear constitutional text, then surely the non-existence of a convention cannot do so either. Yet that is exactly the government’s contention: no convention specifies how quickly s. 32 must be complied with, therefore s. 32 need not be complied with at all. This too is absurd.

When a court finally reaches the merits of Mr. Alani’s claim, it ought to rule in his favour. The government’s substantive submissions are feeble ― not because its lawyers are bad, but because its case is. But whether the Federal Court is the court that can address the merits of this case is a difficult question, to which I am unable to suggest a definitive answer.

Adequate Alternatives

Last week, the Supreme Court issued an interesting decision which, although apparently only concerned with judicial review (of the administrative law sort) and the respective jurisdiction of the Federal and superior courts, also tells us something about the role of the courts more generally. The case, Strickland v. Canada (Attorney General), 2015 SCC 37, was an appeal from decisions by the Federal Court and the Federal Court of Appeal not to hear an application for judicial review of the legality of the Federal Child Support Guidelines, which the applicants said did not comply with the requirements set out in their enabling legislation. The Supreme Court unanimously dismissed the appeal, and held that the federal courts were right to decline to exercise their undoubted jurisdiction to review the Guidelines’ legality.

Both federal courts concluded that provincial superior courts would be better placed to consider such a challenge, within the context of a case where the Guidelines would be applicable. Such cases, and family law matters more generally, are the preserve of the provincial courts. Federal courts have very little say in family law, and lack the expertise in this area. The interests of justice, they thought, would be better served by having a more expert court consider the issue.

The first question which the Supreme Court addressed was whether it was indeed the case that a provincial superior court could consider a challenge to the Guidelines’ legality. Section 18 of the Federal Courts Act, after all, gives the federal courts exclusive jurisdiction to review the actions of the federal administration, including the regulations it issues, such as the Guidelines. However, Justice Cromwell, for the majority, concluded that “[a] provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it.” [15] He pointed out that the Court already held, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, that superior courts could exercise their jurisdiction to award damages against the federal Crown without the federal courts having first considered the legality of the Crown’s conduct in the context of an application for judicial review. This decision, Justice Cromwell said, “support[ed] the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts.” [22] Thus if a litigant who is seeking or opposing a child support order wants to challenge the legality of the Guidelines in a case before a superior court, he or she may do so.

Given this conclusion, the second question for the Supreme Court was whether the federal courts were right to decide that such a challenge would be a better vehicle for considering the legality of the Guidelines then an application for a declaration made to the federal courts. The courts’ power to review the legality of the decisions of governments (as well as some other organizations) is discretionary, meaning that in some circumstances, the court will decline to exercise it. This is particularly so, Justice Cromwell pointed out, when the remedy sought is a declaration. As Justice Cromwell further pointed out, “[o]ne of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative,” [40] which “need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.” [59] In this case, the question was whether challenging the legality of the Guidelines before the provincial superior courts was such an alternative, an issue that must decided by looking at all the circumstances of the particular case, including “the purposes and policy considerations underpinning the legislative scheme in issue.” [44]

The appellants claimed that going to the Superior Courts was not an adequate alternative for them. They did not want to (re)litigate their child-support cases ― they only sought to have the Guidelines themselves declared illegal, and thus had no reason for turning to the superior courts. But unlike litigants asserting a private right, the “appellants do not have a right to have the Federal Court rule on the legality of the Guidelines,” [48] and the Court was entitled to refuse to do so. In making that decision, it could not

simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental questions of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts. [50]

In this regard,

it would be curious, to say the least, if the legality of a central aspect of [the family law] regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. [51]

Finally, a ruling by the federal courts that the Guidelines are illegal would not prevent a “proliferation of litigation.” For one thing, it “would not be binding on any provincial superior court.” [53] For another, “[i]t would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.” [53] There would be other consequences, too, with which only the superior courts could deal.

Ultimately, says Justice Cromwell. family law expertise is required to adequately decide of the challenge to the Guidelines’ legality. It is provincial superior courts that deal with the issues on which the disposition of such a challenge would depend, and have a sense of the Guidelines’ real-life operation and effects. Even if they cannot grant the precise remedies sought by the appellants, it is they who should hear their claims.

* * *

I think this is the right decision. It reminds me of Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746. Mr. Bilodeau sought to have Québec’s courts review a decision of the federal Justice Minister refusing to review his criminal conviction, which he claimed was a mistake. The majority of the Québec Court of Appeal sided with the government, holding that a decision of the federal administration could only be reviewed by the Federal Court. But Justice Duval Hesler (as she then was, and for whom I did some research as a part-time clerk) dissented, arguing (among other things) that “it is desirable that a court engaged this [judicial] review know, understand, and be in the habit of applying the relevant principles” [106] of law. Stickland does not overrule Bilodeau, since it does not affect the majority’s conclusion that the Mr. Bilodeau’s application was not “properly before” the provincial courts at all, but I am happy to see the now-Chief Justice’s logic vindicated.

In a way, however, Justice Cromwell’s reasons are actually unsatisfactory. Perhaps this is too much to ask of a judicial opinion as opposed to an academic study, but I wish he had explored the parallel between the issue he was facing and that of public interest standing ― on which he is, after all, the Supreme Court’s resident expert, having authored its opinion in the leading case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. As Justice Cromwell explained, the claim in Strickland was for a “public law remedy.” The appellants were not looking for anything for themselves, at least not immediately. Their situation was somewhat different from the usual public interest litigants, because their legal rights would have been affected by an invalidation of the Guidelines, but their claim was arguably more similar to public interest one than to a traditional private action.

Under the Downtown Eastside framework, courts will grant a litigant who does not have a personal stake in the dispute public interest standing to contest the legality (and often the constitutionality) of government action if they consider the claim to be a “reasonable and effective” vehicle for having the issue determined. The standing inquiry is, of course, concerned with the claimants, because there is a suspicion that, lacking a personal stake in the dispute, they will not pursue their case effectively, and might interfere with the rights and autonomy of persons who do have such a stake. Accordingly, courts ask themselves whether would-be public interest litigants are genuinely concerned about the issues they are raising, and whether they will be able to litigate them in such a way as to enlighten the courts, and possibly to bring to bear evidence and arguments that would not be available to other parties. But courts are also concerned with using their proverbially scarce resources effectively, as well as with ensuring that an adversarial debate will take place. And, although not fully determinative, the existence of alternative effective means of addressing the issue will clearly be of considerable importance.

It seems to me that the concerns that were weighing on Justice Cromwell’s mind in Strickland are not very different. Ultimately, the issue is whether the case, as framed by the appellants, was a reasonable and effective vehicle for addressing the issue it presented. To be sure, unlike in public interest standing cases, Justice Cromwell (as well as the courts below) worry not about the proposed parties’ capacity to pursue the case, but about the proposed adjudicators’ ability to resolve it. The alternative whose existence might justify refusing the claim to proceed is not the possibility that other litigants could make the same arguments (possibly) before the same court, but that (possibly) the same litigants could make the same arguments before a different court. But these are two aspects of the same problem.

Especially with public interest litigation, which raises complex and often fact-intensive issues ― and has the potential to do so in a relative factual vacuum ― courts are concerned about being able to settle disputes effectively. This may be difficult to do because the parties fail to provide enough information or because the court itself lacks the necessary expertise. For better or worse, Canadian courts aren’t exactly shy about exercising their jurisdiction even in such difficult cases. But it is reassuring to see that, when an alternative recourse susceptible of making for better-informed adjudication exists, they can still insist on it being taken.

A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10. The decision came from the bench at the end of this morning’s hearing, with reasons to follow. I was there, however, so I think I’m in a position to explain the (likely) grounds for the Court’s decision right away.

The federal government’s first, and less important, argument was that Justice Roy, who granted the Bar public interest standing, was to wrong to accept that it had a genuine interest in the issue. The government pointed out that the Bar failed to intervene in any of the multiple ongoing challenges to mandatory minimum sentences. It also asserted that ― unlike the NGO that was granted public interest standing in the Supreme Court’s most important recent case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, it wasn’t an “umbrella,” a representative for the people actually affected by the impugned legislation.

The Bar countered that it had a long-standing interest in matters related to the legal and judicial system, and that this challenge was in furtherance of that interest. The Court of Appeal, presumably, agreed.

The government’s main focus was on Justice Roy’s conclusion that the Bar’s challenge was a reasonable and effective way to get the issues it raised before the courts. Having a credible and well-resourced litigant willing to take on a case is not enough. Downtown Eastside, in the government’s view, stood for the proposition that if a litigant with personal standing could reasonably be expected to mount an equally or more effective challenge, public interest standing should (normally) not be granted. Unlike on the facts of Downtown Eastside, such was the case here. The accused who were potentially subject to the mandatory minimum sentences at issue had every incentive in the world to challenge them. Accused persons had challenged other mandatory minimums all the way up to the Supreme Court in the past, and were already challenging those introduced by C-10. Unlike with the prostitution-related provisions at issue in Downtown Eastside, no person was harmed by the the mandatory minimum sentences before they were imposed on them by courts, so there was no urgency to consider their constitutionality at once.

The government argued that the Bar’s challenge was seriously flawed. For one thing, it would have to be argued in a factual vacuum. The Bar proposed to use available judicial decisions as “reasonable hypothetical” examples of concrete situations to which the mandatory minimums might be applied to fill it up, to but the Supreme Court has cautioned against such practices. And for another, the case was going to turn into an aggregate of 94 individual challenges to the various mandatory minimums created by C-10, and would be unmanageable, and thus not a good use of judicial resources.

The Court, however, was of the view that there was something more to the Bar’s case than an assemblage of challenges to individual mandatory minimums. These were “the trees,” but there was also “the forest” ― the Bar’s claim that Parliament interfered with judicial discretion and even judicial independence. The Bar, the judges suggested, was better placed than any individual litigant to argue this claim. If Parliament were to enact American-style sentencing guidelines, who could challenge them? Surely not an individual accused?

The federal government tried countering that this issue would be just the tip of the iceberg, because “99%” of the time of the court that would consider the case on the merits would be devoted to the challenges to the individual provisions. Switching metaphors, it said that the issue of judicial powers would be “Trojan horse” concealing the “soldiers” of these separate challenges under s. 12 of the Charter. Besides, accused persons could well raise the judicial independence issue, since it is another way, in addition to s. 12, in which the law under which they could be sentenced might be declared unconstitutional. Sure an individual could not fell every “tree,” by attacking provisions under which he is not accused, but he can still burn down the “forest.” If the Bar wants to make this argument, it can always intervene in an existing case. It just hasn’t done so. Increasingly desperate in the face of the bench’s skepticism, the government added that we should not be impressed by the “aura” surrounding the Bar, that we didn’t even know how much the Bar was spending on this challenge, and that many of its members were opposed.

To no avail. The judges obviously thought that the Bar’s argument that the introduction of multiple mandatory minimums amounted to unconstitutional interference with judicial independence or separation of powers was a serious one, and were concerned that it would not be made if the Bar were not allowed to bring it. And the existence of one serious question on which the Bar could have standing was enough to let the whole challenge go ahead. Any issues arising from its scope, the judges suggested, can be addressed through case-management.

The government tried to retreat to a subsidiary position, arguing that even if the Court upheld the decision to grant the Bar standing, it could and should limit standing to the “forest” issue, that of judicial independence. The Bar demurred, saying that this possibility had not been raised at first instance, and the Court, always skeptical, did not take up the suggestion.

Those of you who recall my earlier posts on this case will not be surprised to learn that I think this is a very bad decision. As I wrote here, the Bar’s challenge is a distortion of the nature of judicial review of legislation in the Canadian legal system. During its argument (very brief, at the Court’s request), the Bar insisted that its challenge aimed at the way the mandatory minimums were enacted by C-10 ― all at once and without studies. As a matter of political morality, I fully agree that this way of doing things is a shocking violation of what Jeremy Waldron has called “legislative due process.” But that’s not a legal argument. Legally, I remain persuaded that the argument based on judicial independence is feeble. (I wish the federal government had made that point more forcefully, however.) As I recently noted here, other courts seem committed to the view that Parliament is free to set the ranges within which judges may sentence offenders, subject to s. 12 constraints. In law, as I wrote in discussing the decision at first instance, the Bar’s inclusion of a doomed separation of powers argument allows it to jump through the standing hurdle, and the argument can then be more or less discarded.

A bad precedent, unfortunately, is not so easy to get rid of. I don’t know if the government intends to appeal, but unless it does and the Supreme Court intervenes, the Court of Appeal’s decision will be a standing invitation to any interest group with an ideological agenda to challenge any law it doesn’t like, the courts’ usual admonitions against fact-free constitutional challenges be damned.

Bar This Claim

A couple of recent cases that the Québec Court of Appeal should consider in deciding whether to let the Barreau’s challenge to mandatory minimums go forward.

Last Friday, the Supreme Court heard challenges to mandatory minimum sentences imposed for some gun-related offences as part of the federal government’s “tough on crime” agenda. In R. v. Nur, 2013 ONCA 677, the Court of Appeal for Ontario declared them unconstitutional because, although the sentence was not grossly disproportionate to the accused’s blameworthiness in the circumstances of that case, it could become so in a “reasonable hypothetical” situation, which made it “cruel and unusual punishment” contrary to s. 12 of the Canadian Charter of Rights and Freedoms. The “reasonable hypothetical” framework has long been a staple of s. 12 jurisprudence, going back to the Supreme Court’s decision in R. v. Smith, [1987] 1 S.C.R. 1045. Yet as Justin Ling explains in the CBA National Magazine, during last week’s argument in Nur, “many on the top bench were pondering a departure from the practice.”

And that, I would suggest, should be food for thought for the judges of the Québec Court of Appeal who, on December 4, will hear an appeal from the Superior Court’s decision to allow the Québec Bar to challenge, wholesale, 94 mandatory-minimum provisions recently added to the Criminal Code, Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863. As I explained in criticizing the Superior Court’s decision, although Justice Roy found that the Barreau’s challenge is a “reasonable and effective” way to make the argument that mandatory minimum sentences unconstitutionally infringe on the judiciary’s discretionary powers, this argument is at best secondary in the Barreau’s application. The main one is of the sort that was made in Nur ― a claim that mandatory minimum sentences infringe s. 12 of the Charter. Needless to say, this argument proceeds in a factual vacuum, since no one actually accused of anything is involved in the case. The Barreau contends that this does not matter since s. 12 arguments can be made on the basis of reasonable hypotheticals anyway. But if the Supreme Court chooses to eliminate, or even merely to limit the use of reasonable hypotheticals in s. 12 analysis, this claim will ring more hollow than ever.

As for the claim that mandatory minimum sentences as such infringe the judiciary’s protected discretion, I remain of the view ― which I explained here ― that it is simply not a serious argument. On this point, the words of Chief Justice MacDonald of the Nova Scotia Court of Appeal in the recent case of R. v. MacDonald, 2014 NSCA 102, which struck down the same mandatory minimum that is at issue in Nur, are apposite. The case, he said (at par. 9), is about

the comparative roles of the judiciary and Parliament. Specifically, in our constitutional democracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment for each. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences. In this regard, the will of Parliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by our Charter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. (Emphasis mine)

It is Parliament’s role, not the courts’, to define the range ― that is to say the upper as well as the lower limits, if any ― of sentences for the offences which Parliament creates. It should go without saying that a power to create and define offences entails the power to define their relative gravity, and that the imposition of sentencing ranges is the most obvious (and maybe the only?) way to meaningfully do this. The only constraint on Parliament’s discretion in this regard is the Charter. The Barreau’s separation of powers argument is without merit, and the Court of Appeal shouldn’t repeat the Superior Court’s mistake by allowing its application to proceed on this shaky basis.

Up We Go

Just a quick post to note that Justice Pierre Dalphond of the Québec Court of Appeal has granted the federal government’s application for leave to appeal the Superior Court’s decision granting the Québec Bar standing to challenge, wholesale, the mandatory minimum sentencing provisions enacted by Parliament as part of an omnibus criminal law statute, the Safe Streets and Communities Act, S.C. 2012 c. 1. Justice Dalphond’s ruling is very brief, stating only that allowing the appeal to go forward is “in the interests of the justice system.”

I blogged about the Superior Court’s decision here, arguing that it was not a persuasive one. In my original post on the Bar’s challenge, I expected it to be dismissed for lack of standing; perhaps the Court of Appeal will yet prove me right. For the reasons I elaborated in my previous posts, I believe that the Bar’s recourse is inappropriate and inconsistent with the nature of judicial review in Canada. The hearing of the appeal is set for December 4.

Open Bar

First of all, apologies for my silence. I’m afraid I will not blog much this week either, but I should resume normal schedule next week.

I am able to write today, however, and want to discuss the decision of Québec’s Superior Court on a challenge to the standing of the Québec Bar to attack the constitutionality of the plethora of mandatory minimum sentences introduced by an omnibus criminal law bill, C-10, enacted by Parliament as the Safe Streets and Communities Act, S.C. 2012 c. 1. I blogged about the Bar’s challenge when it was launched, and said I expected it to be dismissed for lack of standing. Well, I was wrong. In Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, Justice André Roy rejects the federal government’s attempt to have the case dismissed, holding that the Bar has public interest standing. It is not, in my view, a very persuasive ruling, but it shows that the Bar’s litigation strategy, which I thought rather bizarre, might in fact be pure genius.

The test for deciding whether a litigant not personally affected by a statute should be granted public interest standing to challenge its constitutionality were most recently revised and set out by the Supreme Court in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. Briefly, the challenge must raise serious and justiciable issues, the plaintiff must have a genuine interest in the dispute, and the case must be a “reasonable and effective way to bring the issue before the courts” in all the circumstances. Relevant factors to determine whether this last criterion is met include (but are not limited to) the plaintiff’s capacity to prosecute his claim, and the possibility that the issues he raises (and his perspective on them) would be brought before the courts in a different way.

The federal government conceded that at least some of the issues raised by the Québec Bar’s challenge were justiciable and serious. Indeed, courts around Canada have already been considering the constitutionality of mandatory minimum sentences, and the Supreme Court will do so when it hears the federal government’s appeal from the decision of the Court of Appeal for Ontario in R. v. Nur, 2013 ONCA 677 and its companion cases.

On the issue of the Bar’s interest in the issue, the government tried arguing that the constitutionality of mandatory minimum sentences had nothing to do with its ostensible mission to protect the consumers of legal services. The Bar itself claimed that its mission was far broader, and that it had a legitimate interest in issues concerning courts and the justice system. Justice Roy agrees with the Bar, finding that it is “a leading actor on all questions relative to both federal and provincial legislation” (par. 42; translation mine here and throughout), and that its mission of protecting the public had a preventive component, encompassing a “social role” (par. 46) which includes the public expression of positions on issues relating to its expertise.

Finally, the government argued that the Québec Bar’s challenge is not a reasonable and effective way to get the issue of the constitutionality of mandatory minimums before the courts, claiming that the Bar’s case really involves 94 distinct challenges (the number of new mandatory minimums in C-10), many of which were already being litigated, and that it would require their consideration in a factual vacuum. The Bar, for its part, contended that its challenge was the best, and perhaps the only, way to bring before the courts an issue which individuals who could be subject to the mandatory minimum sentences would not be likely to litigate, and which is common to all the various provisions it attacks: the elimination of judicial discretion and the corresponding interference with judicial power and independence. Justice Roy agrees with the Bar, asserting that its challenge “gave raise to a judicial [sic] debate on the true issues of this legislation and posed questions that go to the heart of the judicial process in penal matters” (par. 63). “[T]he central question” (par. 67) of any individual challenge to a mandatory minimum is that of judicial discretion, and the Bar’s challenge is a reasonable and effective way of having it answered. As for the necessary factual background, it can be found in past cases cited by the Bar in its application.

Even assuming that Justice Roy’s disposition of the second part of the public interest standing test is correct (which it probably is, given the fairly lax application of this criterion by the Supreme Court in the past), I think that he goes astray in discussing the “reasonable and effective” criterion. It seems strange, if not preposterous, to me to claim that the real issue with mandatory minimums is interference with judicial power rather than the potential for disproportionate punishment in which their imposition may result. The Bar’s application itself devotes 43 paragraphs to allegations of violations of sections 7 and 15 of the Charter, and only 15 ― one third as much ― to the alleged violations of separation of powers and judicial independence. Furthermore, as I argued here, the judicial independence argument is a very weak one ― and it is perhaps noteworthy that Justice Roy does not even mention it in his discussion of the first part of the standing test. I still think that it would be astonishing if this argument were to succeed. And if we set it aside, the Bar’s challenge becomes, as the federal government contended, nothing more than an unwieldy collection of challenges to a large number of independent statutory provisions, presented in a factual vacuum which the Bar and Justice Roy propose to fill with hypotheticals. It is miles away from the Downtown Eastside case, where public interest standing was first and foremost the only way to bring crucial, probably even determinative, facts to bear on a challenge to a unified statutory scheme.

Justice Roy, it seems to me, has fallen for the Bar’s litigation strategy, which is really brilliant ― whether deliberately or accidentally so. By making a doomed, nearly frivolous argument, on which it is most likely to lose when the merits of its case are appraised, the Bar is nonetheless able to give a very different look to its constitutional challenge, and thus get over the standing hurdle, which it should never have overcome. Having overcome it, it can discard this argument altogether, or confine it to the throwaway status that is the best that it deserves, and focus its energy on its more serious claims, which it should not have been allowed to make in the first place. Litigators take note.

I hope the Court of Appeal will take note too, however. I don’t know if the federal government intends to appeal (though it seems like a pretty good bet), but if it does, it should win. I have no love lost for its “tough-on-crime” legislation generally or mandatory minimums in particular, but this case, if it goes forward, will make constitutional litigation into an open bar. As I wrote in my original post, this is not consistent with the nature of judicial review of legislation in Canada. Courts should not allow it to happen.

NOTE: Hat tip to Maxime St-Hilaire for making me aware of the decision, which I had missed.

A Bar Brawl

The Québec Bar has launched a constitutional challenge against a substantial part of the Conservative government’s “tough-on-crime” agenda, Radio-Canada reports. In an application filed in Québec’s Superior Court, it contends that every provision of the the omnibus criminal law bill, C-10, enacted by Parliament this year as the Safe Streets and Communities Act, S.C. 2012 c. 1, that creates or increases a mandatory minimum sentence of imprisonment is unconstitutional. (A note on terminology: I, for one, do not wish to play the government’s game by using the tendentious and self-serving name it chose for this piece of legislation, so I will refer to it as bill C-10, even though, the bill having become law, this is not strictly correct.)

The grounds for the challenge are summarized at par. 9 of the application. The Bar argues that the mandatory minimums breach s. 7 of the Canadian Charter of Rights and Freedoms, which prohibits deprivations of liberty except “in accordance with principles of fundamental justice,” first, because they are arbitrary in that they bear no relationship to the stated objectives of the legislation, and, second, because they might result in sentences disproportionate to offences. For this reason, some of them also breach s. 12 of the Charter, which prohibits cruel and unusual punishment. Furthermore, says the Bar the mandatory minimums infringe the equality rights of Aboriginal Canadians, protected by s. 15 of the Charter. Finally, they are an intrusion on judicial functions and thus contrary to the principles of judicial independence and separation of powers.

There have been plenty of challenges against specific elements of bill C-10. I have blogged about some of them―my posts on the topic are collected here. But this is a different beast. Rather than an accused challenging the specific provision pursuant to which he is charged, this is an interest group attacking the entire policy of mandatory minimum sentences wholesale―but doing it not in the context of the political debate, but in the courts.

Yet in some ways, the application of claim reads like a political rather than a legal argument. It asserts that

minimum sentences … do not serve the public interest; respond to no real need; do not contribute to protecting citizens; and do not permit the realization of the public safety objective (par. 3; translation mine throughout).

It also points out that the vast majority of Canadians do not feel unsafe because of crime and that both the number and the severity of crimes committed in Canada has long been falling.

For the most part, though, the application elaborates the four grounds of unconstitutionality listed above. I will not discuss them in detail here. I canvassed some of the applicable principles in previous posts dealing with challenges to elements of bill C-10, and I might return to the substance of the Bar’s arguments in future posts, especially to the claims about judicial independence and separation of powers. For now, I want to say a couple of things about the challenge as a whole.

One question I want to address is whether the Bar has standing to bring a challenge of this sort. Of course, it is not accused of any crime. It argues that, nevertheless, it has “public interest” standing to bring this application in accordance with the principles set out by the Supreme Court in its recent decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. (Another explanation of the decision, by Pivot Legal, which represented the respondents, is here.) In that case, the Supreme Court held that public interest standing should be granted when “in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). In particular, courts should consider a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court (par. 51). The Bar argues that its challenge fits these criteria. It is a concerned with rights and liberties, has intervened in a variety of constitutional cases to protect them, and seeks to have the constitutionality of the mandatory minimums determined at once, in order to prevent the potential violation of the rights of a great number of accused.

That may indeed be so, but I do not think that the Bar’s challenge is comparable to that which the Supreme Court allowed to go ahead in Downtown Eastside. Unlike in that case, there seems to be no special difficulty in bringing constitutional challenges against mandatory minimum sentences by the traditional route―by individuals who stand accused of crimes conviction of which carries a mandatory minimum sentence. Indeed, many such challenges have already succeeded or are working their way through the courts. Now the existence of alternative routes by which a constitutional challenge can be brought is not dispositive, the Supreme Court said in Downtown Eastside. But there are other differences too. In that case, the Court emphasized the fact that the challenge was to the entire scheme Parliament adopted to regulate prostitution; such a wholesale challenge gives the court a much more complete picture than piecemeal attacks on individual provisions. Here, although the challenge aims at a large number of similar provisions, they are really quite disparate, and not part of a single scheme attempting to respond to one social problem. Finally, a crucial point about the Downtown Eastside challenge is that the groups bringing it are able to marshal substantial evidence to support their claims, evidence that individual accused would be most unlikely to bring to bear on their cases, and which is likely to be essential to the challenge’s chances of success. Here, the Bar does not seem to intend to bring any sort of evidence that would not be accessible to an accused. Its application relies largely on past decisions of courts, including for examples of cases where the new mandatory minimum sentences would have been disproportionate, rather than on social science or testimony which it would be uniquely well-positioned to gather, as the respondents in Downtown Eastside.

This brings me to the second point I wanted to make. The Bar’s challenge ill suits the very nature of the judicial review of legislation as it is understood in Canadian law. Judicial review of legislation in Canada normally happens in the context of specific disputes, with a set of facts to which the court can look to appreciate the effect of the legislation it is reviewing in real life. Of course, the facts of the case tend to be no more than a starting point; courts must also think beyond them when evaluating the constitutionality of legislation. Nevertheless, they often insist, and rightly so, on the importance of a “factual matrix” for adjudication. Adjudication, after all, is application of the law to a set of facts. It might involve other things too, like the development of the law, but at a minimum, it is that. The Bar’s challenge to the constitutionality of mandatory minimum sentences is abstract. It is a shortcut. Its very raison d’être is to avoid waiting for the relevant facts to arise. That’s not how judicial review is supposed to work.

My two cents is that the Bar’s challenge to mandatory minimum sentences will fail because the Bar does not have standing to bring it. And so it should. This is not to say that mandatory minimum sentences are a good idea, or even constitutional. But they should be challenged in real cases, as indeed they are already being all over the country.

Moving the Earth

Last week, the Supreme Court issued an important judgment on the law of public interest standing. Although it might seem like a technical issue, the importance of standing, or locus standi, was already clear to Archimedes 2200 years ago, when he asserted that if given a place to stand, he would move the earth. Ok, maybe he didn’t mean that sort of locus standi, and anyway he spoke Greek, not Latin. But in law no less than in physics, if you want to move the earth, you need a place to stand.

The Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 makes finding one easier. It relaxes, or clarifies, as the Court’s judgment insists, the test courts use to determine whether to grant “public interest” standing to a party who does not have standing―simply put, the right to initiate a lawsuit―to challenge the legality or constitutionality of government action under the traditional (“private interest”) definition of standing, which requires the would-be plaintiff to have a specific personal interest in the dispute.

The would-be plaintiffs in Downtown Eastside are an organization and a former sex-worker who want to challenge the constitutionality of the Criminal Code‘s provisions relating to prostitution, which they say infringe their rights to freedom of speech, freedom of association, security of the person, and equality before the law. Since they neither stand accused under the Criminal Code provisions they want to challenge nor are likely to find themselves in that position, they have no “private interest” in the challenge. But, they say, they should be given standing in the public interest. The Supreme Court of British Columbia refused to do so; the Court of Appeal reversed that decision, and the government appealed. The Supreme Court dismissed the appeal.

Courts can grant a would-be plaintiff public interest standing when his challenge raises serious and justiciable issues, the plaintiff has a genuine interest (in a non-technical sense―this is not a legal interest, in the sense of a personal stake) in the dispute, and, as the Supreme Court put it in Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 at 598, “there is no other reasonable and effective manner in which the issue may be brought before the Court.” But, as Justice Cromwell explains in his opinion for the unanimous Court, “no” here doesn’t quite mean no.

Rather, than a categorical bright-line rule, the test is a flexible standard, requiring the court to assess “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). This still allows the courts to accomplish the purposes of the rules on standing: to keep away “mere busybodies” (more hypothetical than real, says the Court) and economize judicial resources; to ensure that courts will be expose to a full adversarial debate; and to keep them within the bounds of their constitutional role. At the same time, it helps enforce “the principle of legality,” which requires constitutional and statutory authorization for government action, by ensuring that no unconstitutional or illegal action can permanently escape a legal challenge.

Justice Cromwell provides (par. 51) a helpful, albeit non-exhaustive, list of factors to be taken into account in deciding “whether the proposed suit is a reasonable and effective way to” litigate an issue. These include a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court―in practice, not in theory.

Applying these considerations to the would be-plaintiffs in Downtown Eastside, Justice Cromwell finds that they favour granting them public interest standing. In particular, he considers that, contrary to what the trial judge had found, it would be very difficult for the same set of issues to be raised in any other manner. To be sure, individual sex workers or their clients are often charged under the Criminal Code’s prostitution provisions. But even when they challenge the constitutionality of the provisions under which they are charged, they do not―and cannot as of right―challenge the whole scheme adopted by Parliament to deal with prostitution. Nor do they have the sort of resources the would-be plaintiffs here will bring to bear. (Anyway, many of these challenges are not heard because the cases are resolved otherwise.) He also notes that, given the legal and social stigma prostitution engenders, potential individual plaintiffs are unwilling to come forward to bring a comprehensive challenge of their own volition.

This could turn out to be a very important decision―or not. The degree to which the circumstances in which sex workers find themselves prevent them from challenging the laws that affect them might be unique. And we have no way of knowing, for now, just how flexibly courts will apply the “reasonable and effective” standard Justice Cromwell articulates.

I will, at least for now, refrain from further commentary. That is, first, so as not to over-extend an already lengthy post. But second, and more importantly, because my NYU colleague, Trudeau Scholar, and wonderful person, Lisa Kerr, who worked on the winning side of this case with the Pivot Legal Society (which represents the would-be plaintiffs), will soon guest-blog about it here. I am very much looking forward to her comments. I’ll save mine for later, if there is anything left to add.