The British Columbia Court of Appeal will rule Tuesday on whether a former sex worker can challenge the Criminal Code to decriminalize prostitution.
For the past three years, the former sex worker, Sheri Kiselbach, and a team of lawyers have tried to overturn parts of the Criminal Code in an attempt to protect the lives of prostitutes. Although prostitution is technically legal in Canada, it is considered a crime to operate a bawdy house, communicate in public to sell sex or live off the avails of prostitution. Sex workers and activists say these limits endanger the lives of the women who work the streets in often dangerous conditions.
In 2007, Ms. Kiselbach and the Downtown Eastside Sex Workers United Against Violence Society, a lobby group representing sex trade workers, challenged these laws in the B.C. Supreme Court. In December, 2008, the court ruled that the plaintiffs would not be allowed to challenge the Constitution because neither were active sex workers and therefore would not be directly affected by current prostitution laws.
The solution may seem simple: Ask an active prostitute to testify that her rights are being violated. "But that is one of the biggest challenges," said Megan Vis-Dunbar of the B.C. Civil Liberties Association, which is an intervenor in the case. "It is a type of work that is highly stigmatized and criminalized. For someone to stand up in court and say yes, I do this, and this is how I make my living, they could potentially be incriminating themselves."
Katrina Pacey, the leading attorney in the case, said it is unlikely that an active sex trade worker would take the risk to challenge the laws. "For an active sex worker to come before the court, she would face harm personally and professionally," Ms. Pacey said.
In January, 2009, Ms. Kiselbach appealed the case to the B.C. Court of Appeal. "So we are fighting to see if we can actually go to trial. This is about if these two plaintiffs would even be allowed to go to court. It shows you how difficult our legal system is to navigate," Ms. Pacey said.
Ms. Kiselbach declined to comment for this story.
In a landmark ruling on Sept. 28 by Ontario's Superior Court, Justice Susan Himel struck down three main points of the Criminal Code: communication, operating a bawdy house and living off the avails of prostitution. The case was brought forward by one active and two former prostitutes. "By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance," she said. "I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public."
Ms. Pacey says Ontario's case will likely not have any impact on the B.C. Court of Appeal decision, but she hopes Ms. Kiselbach and her team will finally get a chance to challenge the law. Ms. Pacey believes that decriminalizing prostitution will give the workers greater control of their environment.
"Now they have zero control of where and how they carry out their work," she said. "So instead of having to go to a hotel or someone else's house, the sex workers will be the ones in control. This will ultimately make it safer for them."
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