The court appeal by a group of Vancouver sex workers seeking to challenge the constitutionality of Canada’s sex-trade laws has been postponed to Jan 21-22, 2010.
It’s a fight for safety, human rights and equality before the law, says the Downtown Eastside Sex Workers United Against Violence Society (SWUAVS) and Sheryl Kiselbach, who brought the case.
“This case overall is important because it’s about sex workers being able to control their working conditions,” says Pivot Legal Society lawyer Katrina Pacey, who is representing the group.
The case was originally set to be heard Nov 23-24.
Pacey says the adjournment was due to a personal issue for a Crown lawyer.
BC Supreme Court Justice William Ehrcke ruled last December that the Downtown Eastside group would not be permitted to challenge the laws that criminalize sex workers.
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.
SWUAVS was attempting to be the voice for those people reluctant to come forward themselves.
Ehrcke ruled court processes existed to protect the identity of witnesses.
The decision was roundly condemned by sex-trade worker groups and human rights advocates, who launched an appeal.
“The court didn’t realize how marginalized sex workers are and how hard it is for them to access the court system,” Pacey says.
A few months later Court of Appeal Justice Pamela Kirkpatrick granted the BC Civil Liberties Association, the Trial Lawyers Association of BC and West Coast Women’s Leaf Education and Action Fund (LEAF) intervenor status in the case and allowed them to make submissions.
West Coast LEAF says SWUAVS 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. Pacey says constitutional challenges by marginalized groups or individuals may be impossible in the future if this appeal fails.
She says SWAUVS is fighting for access to justice for all marginalized persons and for the recognition that sex workers face incredible barriers in their efforts to protect their human rights.
A similar case is awaiting a decision next year from Ontario Superior Court of Justice Judge Susan Himel. Arguments were heard in October.
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, alleging 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, says 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.
Pacey is hopeful the Ontario case will have a positive outcome.
She says if SPOC wins on the safety rights argument in the Supreme Court of Canada, it would be binding on a decision in the BC case.
But, she adds, the issue of access to the courts would still need to be decided.