A group of Vancouver sex trade workers can challenge the country’s prostitution laws, the Supreme Court of Canada said Friday.
In a unanimous ruling, the high court dismissed a federal government appeal against the Downtown Eastside Sex Workers United Against Violence Society and former sex worker Sheryl Kiselbach.
The decision means the group can proceed with their legal fight, arguing that prostitution laws violate the constitutional rights of sex trade workers to equality, freedom of association and freedom of expression.
“It was ridiculous really how it took five years to get there,” said Ms. Kiselbach, who worked in what she describes as the “survival” sex trade for 30 years. She is now a community worker.
“I’m very happy that now, finally, I can go to court and tell the judges how these laws affected me and how they continue to affect other sex workers, and hopefully create some change.”
Ms. Kiselbach pointed to the notorious case of serial killer Robert Pickton as an example of the violence experienced by women involved in the sex trade on the streets of Vancouver.
“It escalates into other things, as we saw with Pickton and different predators that are around,” she said. “It sends a message to the predators also that they can no longer violate this marginalized population.”
Now the women must decide whether to proceed immediately, or put their case on hold to await the outcome of a similar effort in Ontario involving former dominatrix Terry-Lynne Bedford.
In that case, the Ontario appeal court struck down a ban on brothels, saying it exposes sex workers to danger. The federal government is appealing the Ontario ruling to the Supreme Court of Canada.
A spokeswoman for Justice Minister Rob Nicholson said the case will now return to B.C. Supreme Court.
“Our government is opposed to the legalization or normalization of prostitution,” Julie Di Mambro said in a statement.
“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.
“Canadians can count on this Conservative government to continue to fight to ensure the law protects the health, safety, and security of all Canadians and the well-being of our communities.”
Katrina Pacey, the lawyer from the Pivot Legal Society who represented the sex workers, said it has already been a long fight.
“This case was not meant to be an access to justice case. This case was about striking down Canada’s harmful prostitution laws. Nevertheless we have spent five years, endless lawyer hours, endless resources, a fight that took us all the way to Ottawa last January,” she said.
She said the Vancouver group is considering seeking intervener status in the Ontario case.
“We are all in this because we want adult sex work in Canada decriminalized, because we want sex workers to have safety and control and the ability to determine the conditions and circumstances of their work. Frankly, I don’t really care how that happens,” Ms. Pacey said.
“All I care is that there is safety for sex workers and whatever measure, means is required to get there, we’re on board and ready for the fight.”
Technically, prostitution is not illegal in Canada. What is illegal is keeping a bawdy house, communicating for the purposes of prostitution or living off the avails of prostitution.
Sex workers are overwhelmingly women, aboriginal, poor, addiction sufferers and victims of physical and/or sexual violence, the high court acknowledged in its written judgment.
“The Supreme Court of Canada has sent a very strong message that the voices of these women matter,” Ms. Pacey said.
The government argued that since no prostitution charges had been laid against any of the women involved, the society and Ms. Kiselbach lacked the legal standing to pursue the case. A British Columbia judge agreed with the government, but the provincial appeal court said the group had public-interest standing and could proceed.
The high court justices agreed with the appeal court.
“It provides an opportunity to assess through the constitutional lens the overall effect of this scheme on those most directly affected by it,” said the ruling. “A challenge of this nature may prevent a multiplicity of individual challenges in the context of criminal prosecutions.”
Laura Track, legal director of the West Coast Women’s Legal Education and Action Fund, hailed the decision as a victory for all marginalized groups.
“The implications of this decision for women, for First Nations, for environmental groups to bring forward cases as collectives, in coalitions, simply can’t be overstated.”