Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) 2012 SCC 45
Civil Rights - Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing)
Kiselbach, a former sex trade worker, and Downtown Eastside Sex Workers United Against Violence Society (SWUAV) challenged the constitutional validity of various Criminal Code sections related to prostitution. They sought to do this through a declaratory action that invoked ss. 2(b), 2(d), and 15 of the Canadian Charter of Rights and Freedoms. The Attorney General of Canada (AGC) applied to dismiss the action on the basis that neither Kiselbach nor SWUAV had standing, private or public, to challenge the constitutional validity of the provisions in issue. The AGC also applied to have portions of the pleadings struck under rule 19(24) of the Rules of Court and for an order staying that part of the action on the basis that the pleadings disclosed no reasonable claim, and alternatively, applied for particulars. In response to the rule 19(24) application, the plaintiffs sought to further amend their statement of claim.
The British Columbia Supreme Court, in a decision reported at  B.C.T.C. Uned. F54, allowed the application to further amend the statement of claim. The court did not decide the rule 19(24) application, finding instead that the plaintiffs lacked standing to bring the claim. However, the court observed that many of the alleged defects could be remedied by further amendments to the statement of claim or through the delivery of particulars. Further, the court found that “some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation,” and recognized that portions of it relating to s. 7 of the Charter were not challenged by the AGC under rule 19(24). Kiselbach and SWUAV appealed.
The British Columbia Court of Appeal, Groberman, J.A., dissenting, held that Kiselbach and SWUAV had public interest standing. Accordingly, the appeal was allowed, the order dismissing the action was set aside, and the matter was remitted to the British Columbia Supreme Court for disposition of the rule 19(24) application and the application for particulars. See 294 B.C.A.C. 70; 498 W.A.C. 70. Kiselbach and SWUAV sought increased costs, in the Court of Appeal and in the Supreme Court of British Columbia, payable forthwith. The AGC opposed an order that costs be payable forthwith, opposed an order for special or increased costs, and asked that costs be left to the Supreme Court of Canada, which had granted leave to appeal (see 421 N.R. 400). In the alternative, the AGC asked that party and party costs should be awarded at Scale 3 in the Court of Appeal and Scale C in the Supreme Court of British Columbia.
The British Columbia Court of Appeal, in a decision reported at 314 B.C.A.C. 137; 534 W.A.C. 137, awarded party and party costs at Scale 3 on the appeal and Scale C in the Supreme Court of British Columbia. The court ordered, outside of its usual practice, that the costs of the motion in the Supreme Court of British Columbia on Scale C were recoverable in any event of the cause. The AGC appealed the decision on the merits and costs.
The Supreme Court of Canada dismissed the appeal with costs. The court held that Kiselbach and SWUAV had public interest standing; it was not necessary to address the issue of whether Kiselbach had private interest standing.