Sex trade workers can challenge prostitution laws, B.C. court rules

Sheryl Kiselbach, former sex worker and plaintiff in the challenge to adult position laws, and Katrina Pacey, Pivot Legal Society

A decision was made this morning by the BC Court of Appeal to allow a group of sex workers to challenge Canada's laws on prostitution. Sheryl Kiselbach, former sex worker and plaintiff, and Katrina Pacey of Pivot Legal Society, were among those who spoke at a press conference following the ruling at the Interurban Gallery, in the heart of the Downtown Eastside.

"It’s a really good first step. I was a little apprehensive that they were going to say no," said Kiselbach. The ultimate goal is the decriminalization of sex work, she said.

"This is a case that we think will have a broad impact," Pacey said.

The case dates back to August 2007 when Kiselbach and the Downtown Eastside Sex Workers United Against Violence (SWUAV) came together to challenge three sections of the criminal code relating to prostitution. They applied for "a judicial declaration that the laws violate the Canadian Charter of Rights and Freedoms guarantees of freedom of expression, freedom of association, security of the person, and equality."

In December 2008 BC Supreme Court justice William Ehrcke ruled that neither Kiselbach nor the group could bring the case forward because they had not been charged with an offence – a standard requirement in a challenge to constitutional law.

Prostitution is legal in Canada but a number of activities associated with it, including procuring and keeping a "bawdy house", are not. Activists say that this places sex workers in danger. However, if a recent decision by an Ontario court judge stands, "Prostitutes will be able to communicate freely with customers on the street, conduct business in their homes or brothels and hire bodyguards and accountants without exposing them to the risk of criminal sanctions." Although the challenge was made to constitutional law, it will only be binding in Ontario.

This morning's ruling may lead to similar changes in BC.

The court decided that it would allow Kiselbach and SWUAV to challenge constitutional law.

The Appeal Court found that the Supreme Court (the lower court) applied the law incorrectly, that it was overly restrictive, said Pacey of Pivot Legal Society.

The plaintiffs were granted "public interest standing" in the case. According to Section 15 (1) of the Canadian Charter of Rights and Freedoms, "Courts have the discretionary power to grant public interest standing to any party, including an individual or corporate entity, to challenge the constitutional validity of a law or government action on the basis that it violates the equality rights of people other than the plaintiff."

The Appeal Court recognized that public interest standing must be given a broad and liberal application where equality rights are engaged, said Kasari Govender, counsel for West Coast Legal Education and Action Fund who intervened in the case. "When people are marginalized, when people are vulnerable and poor, they need [greater] access to the courts...in a way that opens the doors to the courthouse."

Pacey of Pivot Legal Society said that this decision would make it easier for groups that represent marginalized peoples to challenge the law.

"If a drug user group wanted to come forward and challenge drug laws, instead of coming forward and signing up for litigation and saying, here’s my name, here’s my identity, they could come forward as a group. It gives the individuals some safety," Pacey said.

It's an issue of equality rights, Kiselbach, who now works as Violence Prevention Coordinator at Prostitution, Alternatives, Counselling & Education Society, said. "They don’t have any equal rights as Canadian citizens."

"Although it’s legal to be a prostitute, they’re treated like criminals. If our laws say all those things - liberty, equality, justice, freedom of choice - then they should allow people to do [sex work] in such a way, like any other trade," she said.

Kiselbach said that if sex work had been decriminalized when she was a sex worker, it would have meant safer working conditions.

“I would have been freer to take my time when accepting clients. I would have been freer to work in a safe environment without fear of my landlord kicking me out at any time. I would have been able to have somebody with me so that I would have been safer without fear of them being charged with procuring. It would have made a great difference. I would not have been charged. I would not have a criminal record.”

In June, UBC associate law professor Janine Benedet and law student Thea Hoogstraten posted a paper on the website of Vancouver Rape Relief & Women’s Shelter, stating that constitutional challenges against prostitution laws “present grave concerns for anyone who is committed to ending violence against women and to fighting for women’s equality.”

Lawyers for Kiselbach and SWUAV are going to set trial dates as quickly as possible, said Pacey.

The Ontario court decision is being appealed by the federal government.

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