The shadow of convicted serial killer Robert Pickton hung over the BC Court of Appeal Jan 21 as a group of Vancouver sex workers sought to have Canada’s prostitution laws overturned.
The case is an appeal of BC Supreme Court Justice William Ehrcke’s December 2008 decision that the Downtown Eastside group would not be permitted to challenge laws that criminalize sex workers. The appeals court heard arguments from Jan 21–22 and has reserved judgment.
The Downtown Eastside Sex Workers United Against Violence Society (SWUAVS) say the laws are unconstitutional.
It’s a fight for safety, human rights and equality before the law, say SWUAVS and former sex worker Sheryl Kiselbach, who brought the case.
However, Ehrcke ruled in December 2008 that neither the group nor Kiselbach could bring the case as they had not been charged with any of the offences — a standard precursor to a constitutional challenge.
And, in their presentation to the appeal court Jan 22, lawyers for the federal attorney general agreed with Ehrcke.
“Ehrcke… correctly found that the impugned laws do not affect Ms Kiselbach because she has not engaged in prostitution since 2001 and has no intention of returning to prostitution at this time,” the federal submission said. “Ms Kiselbach has failed to demonstrate she has any personal stake in the outcome of this action.”
However, SWUAVS lawyer Joe Arvay took issue with that. He explained that Kiselbach has spent several decades as a sex worker although she is not currently in the trade.
He wondered if Ehrcke’s ruling meant Kiselbach would have to return to the street sex trade to gain standing.
“It would be horrible judicial policy,” he said.
Further, Arvay argued, current sex workers in Vancouver’s Downtown Eastside are hardly in a position to mount a constitutional challenge to the law.
He called the case unique.
He said the onus is on the government to find a way to allow sex workers to challenge the laws.
“[Kiselbach] was threatened, raped, almost killed working the streets,” Arvay said. “This court must take note [that] at least 30, 60 or even more women have gone missing and are presumed dead.”
And, several intervenors — the BC Civil Liberties Association (BCCLA), the Trial Lawyers Association of BC and West Coast Women’s Leaf Education and Action Fund (LEAF) — agreed.
The Trial Lawyers’ Megan Ellis said standing is needed to allow the “most vulnerable and marginalized” access to the courts.
“It’s unreasonable to expect a woman who’s [had] sex with a stranger in a dark place for X amount of money and has been arrested to mount a monumental [court] challenge,” she said.
And, West Coast Leaf lawyer Melina Buckley told the court allowing the case to be brought would “ensure laws are not immunized against review.”
“Sex trade workers are constitutional citizens,” Buckley said. “They have a right to assert rights, not just defend them.”
Further, added BCCLA lawyer Jason Gratl, the law often works against the people of the Downtown Eastside.
“The rule of law does apply to sex trade workers,” he said. “They are victim to assault, rape and murder.”
Arvay told the panel of three appeal court judges that while prostitution is legal in Canada, laws prohibiting communicating for the purpose of prostitution, operating a bawdy house and living off the avails of prostitution put women at risk.
He said if sex workers can’t communicate in public, they move indoors which puts the bawdy house rules in effect. If they try to work with a helper, the avails and procuring law kicks in, he added.
“For street workers in the Downtown Eastside working alone is not only dangerous but as we all know, in this province, can be deadly,” said Arvay.
He said allowing SWUAVS to bring the case is like a union pursuing collective bargaining.
“This is the perfect example of freedom of association,” he said.
Arvay said the laws must be struck down as unconstitutional, violating the rights to association, freedom of expression and the right to safety.
There were frequent allusions to the missing women’s case in which Pickton was convicted in the deaths of six drug-addicted sex workers from the Downtown Eastside. Pickton is currently appealing his case to the Supreme Court of Canada.
Ehrcke had rejected the plaintiffs’ argument that the highly public nature of the court process effectively prohibits active individual sex workers from launching a challenge due to fears of arrest and retaliation, as well as social censure and discrimination against themselves and their families.
Ehrcke ruled court processes existed to protect the identity of witnesses.
Indeed, Arvay, said, publication bans can be put on witnesses names.
But, he said, the case was not about witnesses but rather about plaintiffs.
Ehrcke’s decision was being roundly condemned by sex-trade worker groups and human rights advocates.
Pivot Legal Society’s Katrina Pacey said constitutional challenges by marginalized groups or individuals may be impossible in the future if the appeal fails.
A similar case is awaiting a decision from Ontario Superior Court of Justice Judge Susan Himel. Arguments were heard in October.
Federal lawyers in Vancouver further argued the same issues are being argued in the Ontario case, so standing for Kiselbach is not appropriate.
Valerie Scott, executive director of Sex Professionals of Canada (SPOC) and fellow sex work activists Terri Jean Bedford and Amy Lebovitch filed the case in 2007, challenging that several sections of the Criminal Code related to sex work violate the Charter of Rights and Freedoms.
While it is legal to sell sex in Canada, many of the activities related to the sale of sex are considered criminal offences.
SPOC’s case takes issue with Section 213(1)(c), which makes it illegal to communicate for the purposes of prostitution; Section 210, which makes it illegal to run a common bawdy house; and Section 212(1)(j), which makes it illegal to live off the avails of prostitution.
Those laws, said Scott, are putting sex workers at risk because it makes it illegal to take safety precautions including hiring security staff and working in groups.
Christian Legal Fellowship, Real Women of Canada and the Catholic Civil Rights League were granted intervenor status in the Ontario case.
Scott believes no matter who wins, the case will likely wind up in the Supreme Court of Canada.
The same might happen in the BC case. That will not be known until the appeals court releases its ruling.
Justice Mary Saunders said Jan 21 the court will be reserving judgment in the case.
Pacey is hopeful the Ontario case will have a positive outcome.
She previously said if SPCO wins on the safety rights argument in the Supreme Court of Canada, it would be binding on a decision in the BC case.