In Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, former sex worker Sheryl Kiselbach and a group representing sex workers in Vancouver’s downtown eastside won the right to challenge sections of the Criminal Code that prohibit sex workers from soliciting sex in public, keeping a common bawdy house, and transporting someone to a common bawdy house.
They argued that these prohibitions violate several of their Charter rights, including freedom of association, freedom of expression, liberty and security of the person, and equality.
Kiselbach and the society initially launched their legal challenge in 2007. The B.C. Court of Appeal granted the group public interest standing in its 2010 decision. The Attorney General of Canada appealed this decision to the top court, arguing that only litigants charged under the laws could challenge them.
However, the SCC thought otherwise. In granting public interest standing, it considered three factors:
1) whether there is a serious justiciable issue raised;
2) whether the plaintiff has a real stake or a genuine interest in it; and
3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.
In regards to the first factor, Justice Thomas Cromwell, writing on behalf of the court, noted: “Indeed, the respondents argue that the impugned Criminal Code provisions, by criminalizing many of the activities surrounding prostitution, adversely affect a great number of women. These issues are also clearly justiciable ones, as they concern the constitutionality of the challenged provisions.”
Addressing the second factor, he wrote: “The society has a genuine interest in the current claim. It is fully engaged with the issues it seeks to raise.”
The third factor was a bit more complicated. “[B]eing a witness and a party are two very different things. In this case, the record shows that there were no sex workers in the Downtown Eastside neighbourhood of Vancouver willing to bring a comprehensive challenge forward,” wrote Cromwell.
“As I see it, the willingness of many of these same persons to swear affidavits or to appear to testify does not undercut their evidence to the effect that they would not be willing or able to bring a challenge of this nature in their own names. . . . Many difficulties might arise in the context of individual challenges given the evidence about the circumstances of many of the individuals most directly affected by the challenged provisions.”
Elin Sigurdson, co-counsel for the Downtown Eastside Sex Workers United Against Violence Society, says most importantly, these laws cause sex workers’ jobs to be very risky.
“Each of those laws on their own, but also together, have the effect of moving sex workers into the most dangerous possible circumstances in terms of conducting their work,” she says.
Because these laws prevent sex workers from communicating for the purpose of prostitution, working indoors, and working together, they become marginalized, says Sigurdson.
“All of these factors mean that sex workers who are actually doing something that’s not otherwise illegal — it’s not illegal to exchange sex for money — have to do it in a way that is extremely dangerous and marginalized,” she says.
Now that they’ve been given the go-ahead, Sigurdson says the plan is to go to trial but there are many decisions that lie ahead, including whether to co-ordinate their timing with the Canada (Attorney General) v. Bedford case from Ontario.
On March 26, the Ontario Court of Appeal struck down the ban on bawdy houses. The federal government has since filed an application for leave to appeal this ruling with the Supreme Court.
“I do hope there’s a trend [in Canada] towards recognizing that sex workers are human beings and deserve to have their dignity respected, deserve to be heard, and have their expertise understood,” says Sigurdson.