BC Court Constitutionality-Appeal update

November 25, 2009

Report by Jeremy Hainsworth:

http://www.xtra.ca/public/Vancouver/BC_sex_laws_trial_postponed_to_January-7899.aspx

The court appeal by a group of Vancouver sex workers seeking to challenge the constitutionality of Canada's sex-trade laws has been postponed to Jan 21-22, 2010.

It's a fight for safety, human rights and equality before the law, says the Downtown Eastside Sex Workers United Against Violence Society (SWUAVS) and Sheryl Kiselbach, who brought the case.

"This case overall is important because it's about sex workers being able to control their working conditions," says Pivot Legal Society lawyer Katrina Pacey, who is representing the group.

The case was originally set to be heard Nov 23-24.

Pacey says the adjournment was due to a personal issue for a Crown lawyer.

BC Supreme Court Justice William Ehrcke ruled last December that the Downtown Eastside group would not be permitted to challenge the laws that criminalize sex workers.

Ehrcke had rejected the plaintiffs' argument that the highly public nature of the court process effectively prohibits active individual sex workers from launching a challenge due to fears of arrest and retaliation, as well as social censure and discrimination against themselves and their families.

SWUAVS was attempting to be the voice for those people reluctant to come forward themselves.

Ehrcke ruled court processes existed to protect the identity of witnesses.

The decision was roundly condemned by sex-trade worker groups and human rights advocates, who launched an appeal.

"The court didn't realize how marginalized sex workers are and how hard it is for them to access the court system," Pacey says.

A few months later Court of Appeal Justice Pamela Kirkpatrick granted the BC Civil Liberties Association, the Trial Lawyers Association of BC and West Coast Women's Leaf Education and Action Fund (LEAF) intervenor status in the case and allowed them to make submissions.

West Coast LEAF says SWUAVS ought to be able to bring forward important constitutional cases on behalf of the many women who do not have effective access to the justice system on their own. Pacey says constitutional challenges by marginalized groups or individuals may be impossible in the future if this appeal fails.

She says SWAUVS is fighting for access to justice for all marginalized persons and for the recognition that sex workers face incredible barriers in their efforts to protect their human rights.

A similar case is awaiting a decision next year from Ontario Superior Court of Justice Judge Susan Himel. Arguments were heard in October.

Valerie Scott, executive director of Sex Professionals of Canada (SPOC) and fellow sex work activists Terri Jean Bedford and Amy Lebovitch filed the case in 2007, alleging that several sections of the Criminal Code related to sex work violate the Charter of Rights and Freedoms.

While it is legal to sell sex in Canada, many of the activities related to the sale of sex are considered criminal offences.

SPOC's case takes issue with Section 213(1)©, which makes it illegal to communicate for the purposes of prostitution; Section 210, which makes it illegal to run a common bawdy house; and Section 212(1)(j), which makes it illegal to live off the avails of prostitution.

Those laws, says Scott, are putting sex workers at risk because it makes it illegal to take safety precautions including hiring security staff and working in groups.

Christian Legal Fellowship, Real Women of Canada and the Catholic Civil Rights League were granted intervenor status in the Ontario case.

Scott believes no matter who wins, the case will likely wind up in the Supreme Court of Canada.

Pacey is hopeful the Ontario case will have a positive outcome.

She says if SPOC wins on the safety rights argument in the Supreme Court of Canada, it would be binding on a decision in the BC case.

But, she adds, the issue of access to the courts would still need to be decided.

January 22, 2010

The BC case resumed in the Court of Appeal Thursday 21 Jan 2010:

http://www.torontosun.com/news/canada/2010/01/21/12560461.html

VANCOUVER - A retired prostitute launched an appeal of a B.C. Supreme Court decision that denied her constitutional challenge because she is not active in the sex trade and no active worker would join her.

Judge William Ehrcke ruled in December 2008 that plaintiff Sheri Kiselbach had no direct standing to launch a challenge to existing prostitution laws because she isn't facing criminal charges and her past convictions are not relevant.

?I feel I have the right, even though I'm out of sex work, to be an expert on this issue,? Kiselbach said Thursday outside the B.C. Court of Appeal.

?My experiences in sex work are still as valid today as they are for other sex workers who are working right now.?

Kiselbach's attorney Katrina Pacey with Pivot Legal LLP argues it's unreasonable to ask active sex workers to come forward because the sex industry is relatively underground and criminalized.

?Today what the court is going to hear is why various sex workers cannot come forward as individuals and why the representatives before the court are really appropriate for representing sex workers interests and their goals,? Pacey said.

?What the case is actually about in the long-term is the way that criminal laws that relate to adult prostitution violate the safety, and the liberty and the equality of sex trade workers.?

The B.C. Court of Appeal will hear from Kiselbach Thursday and Friday.

It could be months before the appeals court makes a ruling.

January 26, 2010

Report by Jeremy Hainsworth on Friday the 22nd in BC Appeals Court. Justice Mary Saunders has reserved judgement.

http://www.xtra.ca/public/Vancouver/BC_sex_laws_trial_continues-8155.aspx

The shadow of convicted serial killer Robert Pickton hung over the BC Court of Appeal Jan 21 as a group of Vancouver sex workers sought to have Canada's prostitution laws overturned.

The case is an appeal of BC Supreme Court Justice William Ehrcke's December 2008 decision that the Downtown Eastside group would not be permitted to challenge laws that criminalize sex workers. The appeals court heard arguments from Jan 21-22 and has reserved judgment.

The Downtown Eastside Sex Workers United Against Violence Society (SWUAVS) say the laws are unconstitutional.

It's a fight for safety, human rights and equality before the law, say SWUAVS and former sex worker Sheryl Kiselbach, who brought the case.

However, Ehrcke ruled in December 2008 that neither the group nor Kiselbach could bring the case as they had not been charged with any of the offences ? a standard precursor to a constitutional challenge.

And, in their presentation to the appeal court Jan 22, lawyers for the federal attorney general agreed with Ehrcke.

"Ehrcke... correctly found that the impugned laws do not affect Ms Kiselbach because she has not engaged in prostitution since 2001 and has no intention of returning to prostitution at this time," the federal submission said. "Ms Kiselbach has failed to demonstrate she has any personal stake in the outcome of this action."

However, SWUAVS lawyer Joe Arvay took issue with that. He explained that Kiselbach has spent several decades as a sex worker although she is not currently in the trade.

He wondered if Ehrcke's ruling meant Kiselbach would have to return to the street sex trade to gain standing.

"It would be horrible judicial policy," he said.

Further, Arvay argued, current sex workers in Vancouver's Downtown Eastside are hardly in the situation to mount a constitutional challenge to the law.

He called the case unique.

He said the onus is on the government to find a way to allow sex workers to challenge the laws.

"[Kiselbach] was threatened, raped, almost killed working the streets," Arvay said. "This court must take note [that] at least 30, 60 or even more women have gone missing and are presumed dead."

And, several intervenors ? the BC Civil Liberties Association (BCCLA), the Trial Lawyers Association of BC and West Coast Women's Leaf Education and Action Fund (LEAF) ? agreed.

The Trial Lawyers' Megan Ellis said standing is needed to allow to "most vulnerable and marginalized" access to the courts.

"It's unreasonable to expect a woman who's [had] sex with a stranger in a dark place for X amount of money and has been arrested to mount a monumental [court] challenge," she said.

And, West Coast Leaf lawyer Melina Buckley told the court allowing the case to be brought would "ensure laws are not immunized against review."

"Sex trade workers are constitutional citizens," Buckley said. "They have a right to assert rights, not just defend them."

Further, added BCCLA lawyer Jason Gratl, the law often works against the people of the Downtown Eastside.

"The rule of law does apply to sex trade workers," he said. "They are victim to assault, rape and murder."

Arvay told the panel of three appeal court judges that while prostitution is legal in Canada, laws prohibiting communicating for the purpose of prostitution, operating a bawdy house and living off the avails of prostitution put women at risk.

He said if sex workers can't communicate in public, they move indoors which puts the bawdy house rules in effect. If they try to work with a helper, the avails and procuring law kicks in, he added.

"For street workers in the Downtown Eastside working alone is not only dangerous but as we all know, in this province, can be deadly," said Arvay.

He said allowing SWUAVS to bring the case is like a union pursuing collective bargaining.

"This is he perfect example of freedom of association," he said.

Arvay said the laws must be struck down as unconstitutional, violating the rights to association, freedom of expression and the right to safety.

There were frequent allusions to the missing women's case in which Pickton was convicted in the deaths of six drug-addicted sex workers from the Downtown Eastside. Pickton is currently appealing his case to the Supreme Court of Canada.

Ehrcke had rejected the plaintiffs' argument that the highly public nature of the court process effectively prohibits active individual sex workers from launching a challenge due to fears of arrest and retaliation, as well as social censure and discrimination against themselves and their families.

Ehrcke ruled court processes existed to protect the identity of witnesses.

Indeed, Arvay, said, publication bans can be put on witnesses names.

But he said, the case was not about witnesses but rather about plaintiffs.

Ehrcke's decision was being roundly condemned by sex-trade worker groups and human rights advocates.

Pivot Legal Society's Katrina Pacey said constitutional challenges by marginalized groups or individuals may be impossible in the future if the appeal fails.

A similar case is awaiting a decision from Ontario Superior Court of Justice Judge Susan Himel. Arguments were heard in October.

Federal lawyers in Vancouver further argued the same issues are being argued in the Ontario case so standing for Kiselbach is not appropriate.

Valerie Scott, executive director of Sex Professionals of Canada (SPOC) and fellow sex work activists Terri Jean Bedford and Amy Lebovitch filed the case in 2007, challenging that several sections of the Criminal Code related to sex work violate the Charter of Rights and Freedoms.

While it is legal to sell sex in Canada, many of the activities related to the sale of sex are considered criminal offences.

SPOC's case takes issue with Section 213(1)©, which makes it illegal to communicate for the purposes of prostitution; Section 210, which makes it illegal to run a common bawdy house; and Section 212(1)(j), which makes it illegal to live off the avails of prostitution.

Those laws, said Scott, are putting sex workers at risk because it makes it illegal to take safety precautions including hiring security staff and working in groups.

Christian Legal Fellowship, Real Women of Canada and the Catholic Civil Rights League were granted intervenor status in the Ontario case.

Scott believes no matter who wins, the case will likely wind up in the Supreme Court of Canada.

The same might happen in the BC case. That will not be known until the appeals court releases its ruling.

Justice Mary Saunders said Jan 21 the court will be reserving judgment in the case.

Pacey is hopeful the Ontario case will have a positive outcome.

She previously said if SPCO wins on the safety rights argument in the Supreme Court of Canada, it would be binding on a decision in the BC case.

CookiesNScream · January 28, 2010

"Ehrcke... correctly found that the impugned laws do not affect Ms Kiselbach because she has not engaged in prostitution since 2001 and has no intention of returning to prostitution at this time," the federal submission said. "Ms Kiselbach has failed to demonstrate she has any personal stake in the outcome of this action."

LOL! Sheri is a good friend of mine, we used to work together at 2 different charities, and she is almost 60 years old. Fuck I hope she doesn't go back to working on stroll. Jeebuz! LOL!

She has a criminal record as long as my arm and that isn't good enough for the courts?

I can't believe that another one of us has to get pinched for this to move forward.

January 28, 2010

... "Ms Kiselbach has failed to demonstrate she has any personal stake in the outcome of this action." ...

Ok, so maybe I am wayyyyy out in left field here (that's always very possible) or maybe I just don't see things the way "normal" people do but to me - and this is just my personal opinion here - the person with no "personal stake" in something is the one I that I'm much more likely to listen to. That is the one I think has the most credibility over say someone who does have a personal stake in something.

Maybe I'm just missing something here... I guess that something I'm missing is why I will never be in law. Or maybe (just maybe) it's something I have rather than something I'm missing; common sense.

But then again how would I know? I'm not a judge.

CookiesNScream · January 28, 2010

Well, she apparently doesn't have anything at stake cuz she's out of the biz. However, she works as a Violence Prevention teacher at PACE Society to help street workers work safer.

She has all the 1st hand knowledge at how the laws are harmful towards workers, as well, as she was in the biz for a verrrrry long time as a dancer and on stroll.

The problem the law has is they want someone who is currently being charged on prostitution related offenses, to battle it in Supreme Court. That is how it usually is. However, not many people being charged want to face the media and be exposed to the world as being a 'prostitute'. As obviously this could affect getting future employment, can cause family problems, sex workers worry about losing their kids to social services etc...

So, it is better for a veteran of the sex trade, who has left the biz, to be the one to take on the Supreme Court with organizations backing her up.

She is doing it to help others, and the court wants someone doing it for themself.

Newton · January 28, 2010

There're different branches of government that perform different functions, I think. The judiciary just judicates disputes arising from the enforcement of the law, while the legislature makes laws. If you're not being charged, there is no issue, though you can always pressure the parlement to change laws whether you're an interested or disinterested party.

Posted via Mobile Device

October 12, 2010

Martin Youssef reports for the Globe&Mail, 11 Oct 2010:

http://www.theglobeandmail.com/news/national/british-columbia/former-sex-trade-worker-seeks-day-in-court/article1752685/

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.?

October 13, 2010

Chad Skelton reports for the Vancouver Sun, 12 Oct 2010:

http://www.vancouversun.com/life/workers+will+their+court/3658954/story.html

B.C. sex workers will get their day in court

VANCOUVER - A group of B.C. sex workers seeking to strike down Canada's prostitution laws will probably get their day in court after all.

In a 2-1 ruling Tuesday, B.C.'s Court of Appeal found that former Vancouver sex worker Sheryl Kiselbach and the Downtown Eastside Sex Workers United against Violence Society have "standing" to challenge the constitutionality of Canada's adult prostitution laws.

The appellate court's decision overturns a December 2008 ruling from B.C. Supreme Court Justice William Ehrcke that the case couldn't proceed because none of the plaintiffs was charged, at the time, with any prostitution-related offences.

Kiselbach's lawyers appealed that decision, arguing it was unreasonable to expect active sex workers to come forward by name to challenge the law because they could face everything from public stigma to investigation by child-protection authorities.

Federal Department of Justice spokeswoman Lyse Cantin said Tuesday the government has not yet decided whether to appeal the decision.

At a news conference Tuesday, Kiselbach said she was "pleased and relieved" with the Court of Appeal's ruling. She said laws restricting prostitution make sex workers reluctant to report violence to police and make it harder to work indoors, where they would be safer.

"I would like them to have options, to be able to work safely without fear of the law," said Kiselbach, who left the sex trade in 2001 and now works as a safety teacher for sex workers.

Writing for the majority, Justice Mary Saunders noted that one of the reasons Kiselbach brought forward her case was the "notorious missing-women investigation in Vancouver," and said challenging the law should not be made overly difficult for vulnerable groups.

Katrina Pacy, a lawyer with the Pivot Legal Society who is representing Kiselbach, said the court's ruling should make it easier for other marginalized groups to bring court challenges in the future.

"It's absolutely paramount to have access to our court system," said Pacy. "This is a case we think will have a broad impact."

Last month, in a similar case that did get to trial, Ontario's Superior Court struck down the laws against running a bawdy house, communicating for the purposes of prostitution and living off the avails of prostitution.

That decision only applies in Ontario and the federal government has asked the judge to suspend her decision while it appeals.

Nonetheless, the Ontario ruling is "very encouraging," Pacy said, and many of the experts cited in that case will be called on in B.C., as well.

Concerns have been raised, following the Ontario ruling, that decriminalizing the sex industry could make Canada a haven for sex tourists and traffickers.

Pacy said the goal of Kiselbach's challenge is to improve the safety of sex workers.

But, she noted, decriminalization in other places, such as New Zealand, has made prostitutes' lives safer while not leading to any great expansion of the industry.

"It's not like mega-mall brothels are opening on every street," she said.

Pacy also noted that prostitution, if decriminalized, would be subject to the same workplace-safety and bylaw restrictions as any other legal business.

Text of Ruling: http://www.courts.gov.bc.ca/jdb-txt/CA/10/04/2010BCCA0439.htm

January 11, 2012

Jeremy Hainsworth reports for Xtra!, 10 Jan 2012:

http://www.xtra.ca/public/Vancouver/Can_BC_sex_workers_trial_proceed-11330.aspx

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.

January 19, 2012

Meagan Fitzpatrick reports for CBC, 19 Jan 2012:

http://www.cbc.ca/news/canada/british-columbia/story/2012/01/19/pol-sex-workers-scoc.html

Lawyers for the federal government and a group of Vancouver sex-trade workers are in Canada's top court on Thursday to argue the validity of an attempted constitutional challenge to prostitution laws.

Members of the sex trade and their supporters will rally outside the Supreme Court of Canada in Ottawa around noon after the morning hearing gets underway.

The Downtown Eastside Sex Workers United Against Violence Society has been arguing since 2007 that prostitution-related laws violate the Charter of Rights and Freedoms.

The federal government immediately challenged the case before it could get to court, and attempted to have it thrown out. The government argued sex-trade workers don't have grounds to launch a claim because it doesn't qualify for public interest standing.

Court to decide if case can proceed

To be granted public interest standing before the court, one must prove that:

The issue is a serious one.
There is no other reasonable or effective way for the issue to come before the court.
Those behind the case are directly affected by it.

The British Columbia Supreme Court agreed with Ottawa, and denied public interest standing to the sex-trade workers group in 2008. But that decision was overturned when the group appealed it in 2010.

The federal government, in turn, launched an appeal, and now it will be up to the Supreme Court to decide whether the case can proceed and the sex-trade workers can continue with their challenge.

The court is hearing arguments Thursday and will issue its decision in the coming months.

Workers argue laws are discriminatory

Former sex-trade worker Sheryl Kiselbach is also part of the case. The group is trying to challenge most of the Criminal Code provisions pertaining to adult prostitution, including those related to bawdy houses, living off the avails of prostitution, and communicating in a public place for the purpose of prostitution.

Prostitution itself is legal in Canada; most of the activities related to prostitution, however, are prohibited by the Criminal Code.

The sex-trade workers argue the laws prevent them from improving the health and safety of their work, they discriminate against them because of their line of work and they restrict their freedom of expression.

The workers also claim the prostitution laws prevent them from obtaining the protections and benefits that other workers get under labour and employment laws.

January 20, 2012

Robert Hiltz reports for Postmedia News, 20 Jan 2012:

http://www.vancouversun.com/news/Charter+challenge+moves+Supreme+Court/6025700/story.html

A controversial B.C. case over who can mount a Charter of Rights challenge to Canada's anti-prostitution laws made it to the Supreme Court, bringing dozens of supporters to the court's front steps on a frigid Thursday in Ottawa.

The federal government appealed the case of Sheryl Kiselbach, a former sex worker with 30 years experience, who challenged the existing laws surrounding prostitution as unconstitutional.

Kiselbach said that if her case is successful, it will be a step toward bringing sex workers walking the streets away from the margins of society.

"It will stop the fear of going to the police about violence and fearing con-sequences. That [sex workers] can go to the police, be believed and some-thing will be done about it," Kisel-bach said, responding to questions what would happen if her case goes forward.

At stake is whether groups or individuals can file a Charter of Rights challenge to the Criminal Code without being charged with a crime. In 2007 Kiselbach, along with Downtown East-side Sex Workers United Against Violence Society (SWUAV), filed a challenge in a B.C. court claiming that Canada's anti-prostitution laws put sex workers on the street in harm's way.

SWUAV and Kiselbach argue that the laws prohibiting working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution endanger the lives of sex workers by forcing them to work underground.

But before the constitutional challenge could go ahead, federal government lawyers asked for the case in B.C. to be thrown out because Kiselbach was not working as a sex worker and because no member of SWUAV was facing any criminal charges.

The lower court agreed with the government, prompting SWUAV and Kiselbach to appeal.

In October 2010, the B.C. Court of Appeal ruled in favour of Kiselbach and SWUAV, saying they had public interest standing and did not need a private party to go forward with their charter challenge.

"This is about access to justice, about sex workers having their day in court and having the opportunity to tell the court and tell the justice system about the charter violations they face every day," Katrina Pacey, one of the lawyers representing SWUAV and Kisel-bach, said.

The government then appealed to the Supreme Court, where the top court heard the two sides' arguments Thursday.

"I think the opposition to my case is because I'm no longer working. That's what they were bringing up today since I don't have a charge against me and things like that," Kiselbach said.

Government lawyer Cheryl Tobias said that there are plenty of criminal cases before the courts that could be used as a test case instead of bringing in advocacy groups and former, in this case, sex workers.

"The rule that we are proceeding under is the foundational rule, one of long standing. If the court wants to change that, the court can do that. But those are the laws as we understand them," Tobias said.

"It's very important that people's constitutional rights be litigated and respected - but it's equally important that it be done in a way that really appreciates all the ramifications involved," she said. "The case that's being brought is a case about a multitude of people and where the basis keeps shifting."

In court, SWUAV lawyers argued that there was too much at stake - namely, jail time - for a sex worker charged to go through with a challenge to the structure of existing laws.

"It is really unfair that any one of these women, or men, can't come forth without fear that their livelihood is going to be challenged," Kiselbach said on the steps of the court. "If I was still working I would not have come forward yet because I wouldn't have been able to work properly, I might have been targeted by somebody that didn't agree with me."

If the government's appeal fails, the Kiselbach's charter challenge can go forward. As usual, the Supreme Court said it will give its decision at a later date.

1326656429433_ORIGINAL.jpg?quality=80&size=650x

Supporters of sex trade workers rallied outside

the Supreme Court of Canada in Ottawa on

January 19, 2012. (John Major/QMI Agency)

http://www.torontosun.com/2012/01/19/sex-workers-turn-to-supreme-court

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