3 min

Sex workers’ case goes before Supreme Court of Canada

Solidarity rallies held across Canada June 8

Vancouver sex workers and their allies gather in solidarity with the case to be heard by the Supreme Court of Canada June 13. Credit: Jeremy Hainsworth photo

Vancouver sex-trade workers and their allies joined others in rallies across Canada June 8 to support women involved in two cases challenging the constitutionality of the country’s prostitution laws.

One such challenge from Ontario goes before the Supreme Court of Canada June 13.

“That’s the ultimate and final hearing in this case,” says lawyer Katrina Pacey of Vancouver’s Pivot Legal Society. “It will be determinative for the entire country. If the laws are struck down, it will apply federally.”

Pacey says those involved in a BC case have added their voices to the Ontario case to make the BC workers’ views known.

“I’m not a criminal. Keep your laws off my body,” Vancouver sex-trade activist Susan Davis told the crowd of about two dozen gathered at the Vancouver Art Gallery for the Red Umbrella March.

The march was part of a national day of action, with similar events taking place in Kingston, Montreal, Ottawa, Toronto and Victoria to highlight the Ontario case.

“For those of us who provided evidence in the case, it has been a long and hard road,” Davis says. “Now, all of our fates are in the hands of the court.”

Davis is critical of the collapse of the group charged with implementing recommendations from BC’s Missing Women Inquiry delivered last year.

Lawsuits filed by families of the victims of serial killer Robert Pickton prompted the resignation of former BC lieutenant governor Steven Point, appointed by the provincial government to implement recommendations from the public inquiry into the Pickton investigation conducted by former judge and attorney general Wally Oppal. The BC government has said the litigation “takes precedence over all other related processes” and would hamper Point’s ability to speak freely, lest he be called to testify.

Davis says the BC government has warned that other work to fix the problems identified at the inquiry might also be hampered because of the lawsuits.

“I say bullshit,” Davis says. “If it wasn’t that, they’d find another way to put it on the back burner.”

Some of those issues will be on the front burner in Ottawa June 13.

The case before Canada’s high court is a federal government appeal of an Ontario case involving sex workers Valerie Scott, Terri-Jean Bedford and Amy Lebovitch.

The women say Canada’s current prostitution laws against communicating, procurement, bawdyhouses and living off the avails of prostitution violate constitutional rights to freedom of thought, belief, opinion and expression, as well as the right to life, liberty and security of the person.

Pacey has been involved in both the Ontario and BC cases. She’ll be in Ottawa to participate in the Ontario case appeal.

“We will be there to stand in solidarity,” she says.

The legacy of the current laws “has been an epidemic of murdered women in this city,” she says.

The federal government announced last April that it would appeal a March 2012 Ontario Court of Appeal decision that struck down two of the prostitution laws as unconstitutional.

In September 2010, Ontario Superior Court Justice Susan Himel struck down three Criminal Code provisions related to sex work. The government appealed.

While the Ontario Court of Appeal agreed with Himel on two provisions – striking down the bawdyhouse law and modifying the criminalization of living off the avails of sex work – three of the five judges upheld the law that prohibits communication for the purposes of prostitution.

The Supreme Court of Canada will have the final say.

“This could mark a monumental shift in the laws that have made sex work so incredibly dangerous for many decades,” Pacey tells Xtra.

The BC case will remain on hold while the country’s nine top judges assess the Ontario case over the coming months.

Vancouver’s Downtown Eastside Sex Workers United Against Violence Society (SWUAV) and former sex worker Sheryl Kiselbach brought a similar challenge in 2007 but had to go as far as the Supreme Court of Canada to be allowed to have the case proceed in BC Supreme Court.

Kiselbach’s and SWUAV’s initial attempt to challenge the laws was 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.

The BC Court of Appeal overturned Ehrcke’s decision and allowed Kiselbach and SWUAV to challenge the laws themselves. But the federal government appealed.

Canada’s top court ruled the challenge could proceed.

In allowing the BC case to return to BC Supreme Court, Supreme Court of Canada Justice Thomas Cromwell said the case was in the public interest as its issues transcend the applicants’ own interests.

SWUAVS and Kiselbach maintain the challenge is a fight for safety, human rights and equality before the law.

Pacey says no date has been set for a hearing of the Kiselbach case in BC, as it is dependent on the outcome of the Ontario case.

“The outcome in Bedford is binding on Kiselbach,” Pacey says.