Vancouver – Canada’s highest court has unanimously ruled that a former sex worker and an organization run by and for street-based sex workers have the right to challenge Canada’s laws that criminalize adult prostitution.
On January 19th of this year, the Supreme Court of Canada (SCC) heard the Federal Government’s appeal in the case of Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society & Kiselbach.
The Federal Government asked the court to find that Sheryl Kiselbach, a former sex worker with 30 years of experience in the sex industry, and the Downtown Eastside Sex Workers United Against Violence Society (SWUAV), do not have the right to challenge Canada’s criminal laws relating to adult prostitution.
This case began in 2007, when Ms. Kiselbach and SWUAV (a non-profit organization of street-based sex workers) filed a constitutional challenge to the following Criminal Code provisions: the communication law, the bawdy house law, and the parts of the procuring law that targets adult prostitution. Before the case could get to trial, the Federal Government brought a motion to have it struck out of court. The BC Supreme Court agreed, deciding that the Plaintiffs did not have “standing” to the challenge the laws because neither Ms. Kiselbach nor SWUAV as an organization faced a current risk of being charged with a prostitution-related offence. On appeal, the BC Court of Appeal reversed the decision. The Federal Government appealed that decision to the Supreme Court of Canada. In a decision released this morning, the SCC dimissed the appeal and granted public interest standing to both Ms. Kiselbach and SWUAV.
After five years in legal limbo, Ms. Kiselbach reacted to today’s decision, saying: “I am appalled that the Federal Government used enormous public resources to try to stop me from having my day in court. All I have been asking for is the chance to tell a judge how the prostitution laws caused me enormous physical and emotional harm. I am thrilled that I will have the opportunity to proceed with the case, and that my basic right to access the courts has been recognized. I have the safety and support to do this now, and it would have been impossible for me while I was actively involved in sex work.”
At the Supreme Court of Canada, SWUAV and Ms. Kiselbach argued that the extraordinary violence and discrimination faced by street-based sex workers limits the ability of individual active sex workers to start litigation in their own names and see it through a long and difficult process. Ms. Kiselbach did not have the resources or capacity to mount this type of complex, controversial and demanding constitutional challenge while she was active in the criminalized sex trade, but was able to do so once her circumstances changed. As an organization, SWUAV could protect the privacy and safety of its members, who because of their vulnerability and marginalization could not bring a lawsuit individually.
The Supreme Court agreed, holding that in granting public interest standing,"the court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into acoount that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected."
“Today’s decision has many exciting implications. First, Ms. Kiselbach and SWUAV can continue with their challenge to the extremely harmful laws that criminalize sex workers,” said Katrina Pacey of Pivot Legal Society, counsel for the plaintiffs. “Second, 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.”
In light of the important access to justice issues raised, many rights-seeking groups intervened in the case, arguing for a law of standing that would ensure that groups like SWUAV and plaintiffs like Ms. Kiselbach would not be prevented from having their claims heard. Intervenors included:
• Community Legal Assistance Society
• BC Civil Liberties Association
• West Coast LEAF
• Canadian HIV/AIDS Legal Network
• David Asper Centre for Constitutional Rights
• Ecojustice Canada
• Canadian Civil Liberties Association
• Canadian Association of Refugee Lawyers
• Conseil scolaire francophone de la Colombie-Britannique
Full judgement is available at http://scc.lexum.org/en/index.html
Litigation director, Pivot Legal Society
(604) 729-7849 or [email protected]