The Supreme Court of Canada has upheld the right of a non-profit group representing women in downtown Vancouver's sex trade to challenge the country's anti-prostitution laws on constitutional grounds.
The ruling means the Downtown Eastside Sex Workers United Against Violence Society can go back to B.C. Supreme Court to pursue a case it launched five years ago. The suit takes aim at a broad range of provisions in Canada's anti-prostitution law, including prohibitions on keeping a bawdy house, living off the avails of prostitution and communicating in a public place for the purposes of prostitution.
In making its ruling, the court looked at the three considerations for granting legal standing:
- Whether the matter is a serious legal issue.
- Whether the party bringing the case has a stake in the outcome.
- Whether the proposed suit is a reasonable and effective means of bringing the matter before the court.
In 2007, the trial judge at the B.C. Supreme Court had found the group's request for standing passed the first two tests, but not the third, and he rejected the request for standing. He pointed out there are hundreds of prostitution cases every year in B.C. and that any of those sex workers could bring a case forward.
The trial judge also pointed out the existence of similar challenge in Ontario brought by three sex workers. The Ontario Court of Appeal struck down two of the key provisions of the anti-prostitution law in that case in March. The federal government announced in April it would appeal. The Supreme Court has not yet indicated whether it will hear the appeal.
Opportunity for the 'marginalized people'
Friday's top court ruling agreed with a 2010 B.C. Court of Appeals ruling that in fact the case meets all three tests.
"[C]ourts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality," Justice Cromwell writes in the decision.
Cromwell also writes that the existence of other potential plaintiffs who could have individually challenged the court "should be considered in the light of practical realities, which are such that it is very unlikely that persons charged under the prostitution provisions would bring a claim similar to the respondents.'"
He also wrote that the record shows that there were no sex workers in Vancouver's Downtown Eastside willing to bring a challenge forward.
As for the ongoing Ontario case, he writes: "The existence of parallel litigation — even litigation that raises many of the same issues — is not necessarily a sufficient basis for denying standing."
At stake in the Supreme Court's decision was the broader question of whether an advocacy group, or a person not directly related to a case, can be given standing in a constitutional challenge.
On Thursday, Katrina Pacey, a lawyer for the Downtown Eastside group, explained the importance of the court giving public interest standing to the sex workers' group.
"This would provide a real opportunity for marginalized people, people with mental health issues, people with HIV, prisoners, refugees, children to form a collective organization whereby they then have the support and capacity to bring these cases forward, as a community," Pacey said.
This is the second major victory for sex-trade workers this year.
In a separate case in March, the Ontario Court of Appeal struck down two of the key provisions of the anti-prostitution law. The federal government announced in April it would appeal that decision. The Supreme Court has not yet indicated whether it will hear the appeal.
Former exotic dancer joined case
The sex workers' group began the action in B.C. Supreme Court five years ago, claiming the law infringed several of their members' Charter rights.
A former sex-trade worker, Sheryl Kiselbach, then asked to be included in the case. Kiselbach worked for approximately 30 years as an exotic dancer, performing live sex shows, working in massage parlours, conducting street level sex work and working independently in indoor sex work.
On Friday, Kiselbach was also granted public interest standing. She issued a statement through her lawyers.
"I am appalled that the federal government used enormous public resources to try to stop me from having my day in court," she said. "All I have been asking for is the chance to tell a judge how the prostitution laws caused me enormous physical and emotional harm."
"I am thrilled that I will have the opportunity to proceed with the case, and that my basic right to access the courts has been recognized. I have the safety and support to do this now, and it would have been impossible for me while I was actively involved in sex work."
The federal government was able to have the original B.C. court claim dismissed, arguing that neither the sex workers' group nor Kiselbach had public or even private interest standing in the case.
The argument the government used is that Kiselbach is no longer a sex trade worker and therefore can’t be discriminated against by prostitution laws. It also argued that the sex workers' group is not a person whose rights can be infringed.
However, the B.C. Court of Appeal reversed that decision. The federal government then appealed to the Supreme Court of Canada.
The government argued that a limit on granting public interest standing to groups avoids "opening the floodgates to unnecessary litigation" and warned that otherwise, "cases will be inadequately presented by parties who have no real interest in the outcome."
This story has been edited from an earlier version to correctly state that the lower court decision found the group's bid for standing met only the first two tests. The B.C. Court of Appeal and the Supreme Court of Canada have now ruled it meets all three tests for public interest standing.Sep 20, 2012 11:44 AM ET