SWUAV v Canada [2010]

Case summary

In April 2011, the Supreme Court of Canada decided to grant the federal Attorney-General’s application for leave to appeal the ruling of the BC Court of Appeal in SWUAV v Canada.  West Coast LEAF sought leave to intervene in the case in coalition with ARCH Disability Law Centre and Justice for Children and Youth.

The case involves an organization of women called the Downtown Eastside Sex Workers United Against Violence (SWUAV) who are bringing a constitutional challenge to the provisions of the Criminal Code dealing with prostitution.  The case was dismissed by the BC Supreme Court in December 2008 because the Court found that this women’s organization, and an individual former sex worker, did not have “public interest standing” to challenge the constitutionality of the Criminal Code provisions.

For a great summary from the Pivot Legal Society, click here.

West Coast LEAF’s involvement

West Coast LEAF intervened in the distinct matter of “public interest standing” being denied to these women through their representative organization – to argue that such organizations ought to be able to bring forward important constitutional cases on behalf of the many women who do not have effective access to the justice system on their own. The appeal was heard on January 21 and 22, 2010. In October 2010 the BC Court of Appeal decided to allow the appeal on “public interest standing”.

From the October 2011 application for intervention:

“As legal organizations working on behalf of marginalized and historically disadvantaged groups, the members of the Coalition each have extensive experience with the obstacles faced by such groups in accessing justice and therefore in enforcing their constitutional rights and other legal entitlements.  The Coalition seeks leave to intervene in the case at bar in order to submit argument that demonstrates the clear connection between the interpretation of the public interest standing test and the fulfilment of the constitutional rights of Charter protected groups.”

Decision

From the BC Court of Appeal decision:

“Nor, in my view, must the only opportunity to mount a challenge to a section of the Criminal Code arise in the presentation of a defence to a criminal charge.  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.”

Case documents

Factum – BC Court of Appeal

Decision – BC Court of Appeal

Application for leave to intervene – Supreme Court of Canada

Decision – Supreme Court of Canada