A former Vancouver sex worker and an advocacy group for sex workers have won the right to challenge the country’s Criminal Code prostitution laws in BC, the Supreme Court of Canada ruled Sept 21.
The case began in 2007 in BC Supreme Court as a challenge to the communicating, procurement, bawdyhouse and living off the avails of prostitution laws. It became a fight for access to justice that ended in the Ottawa court.
In allowing the case to proceed, Supreme Court of Canada Justice Thomas Cromwell ruled that it is in the public interest as its issues transcend the applicants’ own interests and could assist “the most marginalized members of society.”
He also said a decision in the case could prevent large numbers of similar challenges that would take up court time. Allowing the case to proceed would “promote the economical use of scarce judicial resources,” he ruled.
Advocates hailed the ruling as a win for access to justice for marginalized people and groups across Canada who might not be able to bring challenges to laws they see as unjust.
“The court has increased opportunities to access justice for all marginalized persons who face barriers to bringing human rights claims before the courts. It’s not hard to imagine other groups, such as prisoners, people who use drugs, people living with HIV and children, who will benefit from the ability to litigate human rights cases as a collective,” says PIVOT Legal Society’s Katrina Pacey, one of the lawyers on the case.
“It’s an important victory for access to justice,” agrees Laura Track of West Coast LEAF Women’s Legal Education and Action Fund.
At its heart, though, the case is a fight to overturn laws advocates say endanger survival sex workers.
“Now, finally, I can go to court and tell the judge how the law affected me, and how it affects other sex workers, and get some change,” says former sex worker Sheryl Kiselbach, who brought the case alongside Downtown Eastside Sex Workers United Against Violence Society (SWUAVS).
“I think it sends a message of hope, I hope, that things will change, that they [sex workers] can be safe, that they can work together, that they needn’t fear the police,” says Kiselbach, who spent 30 years in the sex trade. “I think it sends a message to the predators also that they can’t violate this marginalized population.”
It’s “ridiculous” that the case has taken five years — and a large amount of government resources on appeals — to get this far, Kiselbach adds.
Pacey says everyone involved in the case is there “because we want adult sex work in Canada decriminalized.”
“We want sex workers to have safety and control and the ability to determine the conditions and circumstances of their work,” Pacey says. “The Supreme Court has sent a very strong message that the rights of these women matter.”
Kiselbach and SWUAVS say the current prostitution laws infringe their freedom of association rights and prevent them from joining together to improve the health and safety conditions of their work. The laws also undermine their security and infringe their freedom of expression rights by making public communication with potential clients illegal, they say.
The Supreme Court of Canada ruling allowing the case to move forward resulted from a federal government appeal of the 2010 BC Court of Appeal ruling that allowed Kiselbach and SWUAVS to challenge the prostitution laws.
Kiselbach’s and SWUAV’s initial attempt to challenge the laws were thwarted in December 2008 when BC Supreme Court Justice William Ehrcke ruled that neither SWUAVS nor Kiselbach could bring the case as they had not been charged with any of the offences — a standard precursor to a constitutional challenge.
Ehrcke disagreed with Kiselbach’s and SWUAV’s argument that they should be allowed to represent prostitutes because if working prostitutes revealed their line of work in court they could lose their homes, their johns and their livelihood; face retaliation from police and johns; and possibly the apprehension of their children.
The appeals court overturned Erhcke’s decision and allowed Kiselbach and SWUAV to challenge the laws themselves. But the federal government appealed. Today’s decision allows Kiselbach and SWUAV to finally have their day in BC Supreme Court.
The BC case is one of two making their way through the courts that challenge Canada’s sex work laws.
On March 25, the Ontario Court of Appeal struck down two prostitution laws as unconstitutional. The judges agreed with an earlier decision that the law prohibiting bawdyhouses and the law that makes it illegal to live off the avails of sex work should be struck down, but three of the five judges chose to uphold a law that prohibits public communication for the purposes of prostitution.
The federal government is appealing the decision to strike the two laws.
Justice Cromwell noted the Ontario case is parallel to the one in BC but found each case raises different issues. “The claimants in Bedford [Ontario] were not primarily involved in street-level sex work, whereas the main focus in this case is on those individuals,” he said in the ruling.
“The existence of the Bedford litigation in Ontario, in the circumstances of this case, does not seem to me to weigh very heavily against the respondents in considering whether their suit is a reasonable and effective means of bringing the pleaded claims forward,” Cromwell continued.
Pacey didn’t know when the BC case would return to court.