Serious Justiciable Issue. [39] This factor relates to two of the concerns underlying the traditional restrictions on stand- ing. In Finlay, Le Dain J. linked the justiciability of an issue to the “concern about the proper role of the courts and their constitutional relationship to the other branches of government” and the se- riousness of the issue to the concern about alloca- tion of scarce judicial resources (p. 631); see also L’Xxxxxxx-Xxxx J., in dissent, in Hy and Xxx’s, at pp. 702-3. [40] By insisting on the existence of a justiciable issue, courts ensure that their exercise of discretion with respect to standing is consistent with the court staying within the bounds of its proper constitu- tional role (Xxxxxx, at p. 632). Le Dain J. in Finlay referred to Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, and wrote that “where there is an issue which is appropriate for judicial determi- nation the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determi- nation by the legislative or executive branches of government”: pp. 632-33; see also X. Xxxxxx, “The Justice of Access: Who Should Have Standing to Challenge the Constitutional Adequacy of Legal Aid?” (2007), 40 U.B.C. L. Rev. 727, at pp. 733-34; Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, at p. 27. [41] This factor also reflects the concern about overburdening the courts with the “unneces- sary proliferation of marginal or redundant suits” and the need to screen out the mere busybody: [38] La principale question qui oppose les parties en l’espèce a trait à la formulation et à l’application du troisième de ces facteurs. Cependant, comme ils sont tous les trois intimement liés et qu’il existe un différend entre les parties en ce qui concerne au moins un d’entre eux, xx xxxx exposer brièvement certaines des considérations pertinentes quant à chacun de ces facteurs et j’analyserai, par la suite, le rôle qu’ils jouent en l’espèce.
a) Question justiciable sérieuse
Serious Justiciable Issue. [54] As noted, with one exception, there is no dispute that the respondents’ action raises serious and justiciable issues. The constitutionality of the prostitution laws certainly constitutes a “substan- tial constitutional issue” and an “important one” that is “far from frivolous”: see XxXxxx, at p. 268; Xxxxxxxx, at p. 589; Xxxxxx, at p. 633. Indeed, the re- spondents argue that the impugned Criminal Code provisions, by criminalizing many of the activities surrounding prostitution, adversely affect a great number of women. These issues are also clearly justiciable ones, as they concern the constitutional- ity of the challenged provisions. Consideration of this factor unequivocally supports exercising dis- cretion in favour of standing. [55] The appellant submits, however, that the respondents’ action does not disclose a serious circonstances, une manière raisonnable et efficace de soumettre la question à la cour. Ce facteur, com- me les deux autres, doit être apprécié d’une maniè- re souple et téléologique en plus d’être soupesé à la lumière des autres facteurs.
Serious Justiciable Issue. [17] The chambers judge determined that CCD failed to raise a justiciable issue because its claim lacked “the indispensable factual foundation that particularizes the claim and permits the enquiry and relief sought” (para. 38 (CanLII)). He remarked that the “fundamental difficulty” with CCD’s claim was “the lack of a particular factual context of an individual’s case” (para. 37).
Serious Justiciable Issue. 2022 SCC 27 (CanLII) [24] The Court of Appeal held that the chambers judge had erred in requiring “a particular factual context of an individua[l] case” or an individual plaintiff for the serious justiciable issue factor (para. 114). It described CCD’s claim as a “comprehensive and systemic constitutional challenge to specific legislation that directly affects all members of a defined and identifiable group in a serious, specific and broadly-based manner regardless of the individual attributes or experiences of any particular member of the group” (para. 112). For this reason, the Court of Appeal concluded, it would be possible for CCD to establish its claim by adducing evidence from directly affected non-plaintiff and expert witnesses instead of from an individual co-plaintiff.
Serious Justiciable Issue. [48] The first of the Downtown Eastside factors, whether there is a serious justiciable issue, relates to two of the traditional concerns. Justiciability is linked to the concern about the proper role of the courts and their constitutional relationship to the other branches of state. By insisting on the existence of a justiciable issue, the courts ensure that the exercise of their discretion with respect to standing is consistent with their proper constitutional role. Seriousness, by contrast, addresses the concern about the allocation of scarce judicial resources and the need to screen out the “mere busybody”. This factor also broadly promotes access to justice by ensuring that judicial resources remain available to those who need them most (see, e.g., Trial Lawyers, at para. 47). [49] A serious issue will arise when the question raised is “far from frivolous” (Downtown Eastside, at para. 42, citing Finlay, at p. 633). Courts should assess a claim in a “preliminary manner” to determine whether “some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation” (Downtown Eastside, at para. 42, citing Canadian Council of Churches, at p. 254). 2022 SCC 27 (CanLII) Once it becomes clear that the statement of claim reveals at least one serious issue, it will usually be unnecessary to minutely examine every pleaded claim to assess standing (Downtown Eastside, at para. 42).
