Can BC sex workers trial proceed?

The Supreme Court of Canada will hear arguments Jan 19 on the federal government’s appeal of a decision allowing BC sex workers to challenge Canada’s criminal laws on adult prostitution.

It’s not the laws themselves that are at issue before the top court. Rather, lawyers will address whether or not those attempting to challenge the laws in BC Supreme Court have the legal right to present their case.

On Oct 12, 2010, BC’s Court of Appeal ruled that former sex worker Sheryl Kiselbach and Downtown Eastside Sex Workers United Against Violence Society (SWUAV) would be allowed to proceed with their challenge to three sections of Canada’s Criminal Code dealing with prostitution. The Court of Appeal sent the case back to BC Supreme Court to be heard in the public interest.

BC Supreme Court Justice William Ehrcke had initially thwarted SWUAV and Kiselbach when he ruled they couldn’t bring the case as they had not personally been charged with any of the offences – a standard precursor to a constitutional challenge.

The appeals court overturned that decision.

“I respectfully conclude the judge [Ehrcke] failed to give sufficient weight to the breadth of the constitutional challenge and the comprehensive and systemic nature of the plaintiffs’ theory,” Appeals Court justice Mary Saunders ruled. “The balance struck by the jurisprudence is between judicial economy and openness to court review of seriously challenged legislation.”

The federal government appealed that decision to the Supreme Court of Canada, which agreed last year to hear the case.

Vancouver lawyer Katrina Pacey is among the lawyers representing SWUAV at the Supreme Court of Canada’s upcoming hearing. She says the government’s use of its resources to attempt to thwart the challenge is a misuse of taxpayer funds.

“This is a very concerted effort to make sure my clients never get to court and never get to challenge these laws,” she tells Xtra.

According to a written argument they plan to present in court, lawyers for Kiselbach and SWUAV say their clients should be allowed to represent the prostitutes because testifying in court could have consequences for prostitutes currently in the profession.

Giving a marginalized group a chance to come together to challenge the laws that oppress them promotes access to justice and should be encouraged, the lawyers argue.

“SWUAV and Ms Kiselbach are the first plaintiffs to advance a claim that challenges the entirety of these provisions, and it is the first claim that asks the court to examine the collective impact of the prostitution laws,” their written argument continues.

The government disagrees.

Allowing SWUAV and Kiselbach to proceed with their case against the criminalization of prostitution will open the door to other laws being challenged by “busybodies” in other situations, the government plans to argue in court.

The BC Court of Appeal was wrong to grant them legal standing in the public interest, the government’s written argument continues. “Only individuals who are placed in jeopardy by legislation or are affected by it in a manner different from the ordinary citizen have a right to standing to bring a constitutional challenge in respect of that legislation.”

If this case is allowed to proceed with these litigants, it adds, “public interest litigants will be encouraged to bring unnecessarily broad-reaching, multifaceted challenges.”

And that, the government argues, means “scarce judicial resources will be diverted from the courts’ essential role of resolving matters involving private interest parties.”

Pacey doesn’t buy it.

She says her clients are a group of vulnerable women, not academics bent on a constitutional challenge for the sake it. “I don’t think the busybody argument is relevant here,” she says.

The government argues that the existence of an ongoing Ontario case also challenging the prostitution laws shows the question can be considered by the courts without granting SWUAV and Kiselbach legal standing.

In September 2010, three Ontario sex workers, Terri-Jean Bedford, Valerie Scott and Amy Lebovitch, convinced the Ontario Superior Court that the laws prohibiting communication for the purpose of prostitution, bawdyhouses and living on the avails are unconstitutional.

That decision is binding only in Ontario and is on hold as it awaits a ruling from the Ontario Court of Appeal expected this year.

The BC plaintiffs are hoping for a similar ruling here.

Department of Justice spokesperson Carole Saindon tells Xtra it would be inappropriate for government to comment while the case is before the court.