Supreme Court dismisses federal government’s sex work appeal

FEDERAL (Canadian OH&S News)

With another legal victory, this time at the top tier of Canada’s justice system, sex workers took another step forward in the long march towards safer work.

The Supreme Court of Canada, in a Sept. 21 ruling, dismissed an appeal from the federal government that had argued the Downtown Eastside Sex Workers United Against Violence Society (SWUAV), which aims to improve conditions for female sex workers in the Vancouver neighbourhood, and Sheryl Kiselbach did not have public interest standing to pursue a Criminal Code challenge against provisions related to adult prostitution.

“Granting standing will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but it will also promote the economical use of scarce judicial resources,” Justice Thomas Cromwell wrote in the unanimous decision. Though there is a similar case being litigated in Ontario [COHSN, April 2, 2012], the court noted that the Ontario case focuses on brothels, whereas the B.C. challenge is centred on street-level sex work.

The British Columbia case began in 2007 when SWUAV and Kiselbach, a former sex worker for 30 years, launched a Charter challenge to the bawdy house, transportation, procurement and solicitation provisions of the Criminal Code, arguing they infringed on the constitutional rights of sex workers and made the legal work more dangerous. While the B.C. Supreme Court judge found both parties should not be granted public or private standing, the province’s Court of Appeal reversed this decision, and that appeal was argued up to the Supreme Court, which heard the case in January.

“The laws that are currently on the books in Canada prevent sex workers from taking steps to work safely,” said Katrina Pacey, litigation director at the Pivot Legal Society, in Vancouver. Pacey has been representing SWUAV and Kiselbach throughout the five-year process. “It prevents them from working indoors, it prevents them from working together in more collective environments, it prevents them from being able to work on the street safely — it prevents them from doing the things they need to do to ensure their health, safety, freedom from violence and human dignity.”

The federal government had argued that the society and Kiselbach did not have the right to challenge the laws because neither party was at risk of being criminally charged under the prostitution provisions.

“It’s a big win for us. Our case can proceed finally after five years of fighting against the federal government on this whole question of whether or not an organization of sex workers and a former sex worker should be allowed to challenge the laws,” said Pacey.

The case will return to the B.C. Supreme Court, but Pacey added that are still deciding on what the next steps should be, and that the group may wait until the Ontario case is decided before pushing forward.

In an email, Julie Di Mambro, press secretary for Rob Nicholson, minister of justice and attorney general of Canada, reaffirmed the Conservative government’s stance.

“Our government is opposed to the legalization of prostitution. It is harmful to vulnerable persons, especially women. We believe the current Criminal Code provisions are constitutionally sound as they denounce and deter the most harmful and public aspects of prostitution.”

The ruling has further-reaching consequences than the immediate impact of allowing the society and Kiselbach to proceed with their case.

“It has broader access to justice implications as well,” said Pacey. “The court also revisited and rewrote the test for public interest standing, and in their doing so expanded access to justice for marginalized people who otherwise wouldn’t be able to bring litigation to the court.”

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