Charter challenge moves to Supreme Court
Controversial B. C. case aims to bring sex workers away from the margins of society
OTTAWA — 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 consequences. That [ sex workers] can go to the police, be believed and something will be done about it,” Kiselbach 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 Eastside 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 Kiselbach, 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.