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

Members of the sex-trade community and their supporters rallied outside the Supreme Court of Canada in Ottawa following the hearing.

They said they were proud to be arguing before the country's top court and to have the opportunity to tell the justices about the rights violations they say sex-trade workers encounter every day.

The Downtown Eastside Sex Workers United Against Violence Society and the federal government have been embroiled in legal arguments since 2007 when the group launched a claim that prostitution-related laws violate the Charter of Rights and Freedoms. Former sex-trade worker Sheryl Kiselbach is also part of the case and was in Ottawa for the hearing.

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Supporters of sex-trade workers gathered outside the Supreme Court in Ottawa Thursday after a hearing where grounds for a constitutional challenge to prostitution laws were argued. (Meagan Fitzpatrick/CBC)

"I'm feeling hopeful that the judges understand more of the issues," Kiselbach said. She worked in the trade for 30 years and said if the laws were struck down those in the sex trade would be able to work without fear and with more safety. Sex-trade workers who work on the streets, for example, can't take the time to try to assess a customer because of fear of being caught by police, said Kiselbach.

"I think the federal government is trying to protect its legislation. I think that they have not demonstrated that they care about sex workers' rights and sex workers' safety and their willingness and the effort they're putting into fighting my clients is a further example of that," Katrina Pacey, lawyer for the group and Kiselbach, said outside the court.

"As far as I can tell, the federal government seems intent on maintaining Canada's prostitution laws despite the incredible violence and rights violations that they create," she said.

Pacey said the government is using its immense resources to fight a group of vulnerable people and that its legal action has delayed their fight to have prostitution laws struck down for years.

"My hope is that we get to get on to what this case is really about which is sex workers' safety," said Pacey. "It's time for us to recognize that criminal laws have failed by every measure. Sex work happens. Sex workers deserve to be respected and their rights deserve to be respected."

The federal government challenged the original case before it could get to court in British Columbia, 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

The legal test for granting public interest standing before the court involves demonstrating 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.

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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 heard arguments Thursday and will issue its decision in the coming months.

Workers argue laws are discriminatory

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.

Ultimately, the sex workers in this case are trying to decriminalize the activities.

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. 

'Willy Pickton had his day in court, my clients want theirs'—Lawyer Joseph Arvay

During the hearing Thursday, government lawyers argued that the Vancouver group should not be granted public standing as its case doesn't meet the test because there are plenty of other cases where the country's prostitution laws are being challenged.

"There are avenues and there are many of them," government lawyer Cheryl Tobias told the court. She referred to the Bedford case in Ontario as an example of where prostitution laws are already being challenged.

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Terri-Jean Bedford, a dominatrix, currently has her case at the Ontario Appeal Court. The federal and provincial governments are appealing a lower court decision that found parts of the existing laws concerning bawdy houses, living on the avails of prostitution and soliciting prostitutes in public unconstitutional. Ontario Superior Court Judge Susan Himel said in her ruling that the provisions force prostitutes to choose between their liberty and their safety.

"I personally am very content that we got a very good and a very fair hearing," said government lawyer Cheryl Tobias after her appearance before the court.

Joseph Arvay, acting for the sex-trade workers, said no one else should be arguing their case other than the Vancouver workers themselves. He called the government's approach "insulting and patronizing."

"This case is about whether the court will ensure that the sex workers who work the streets of Vancouver's notorious downtown Eastside will have access to justice," he told the court. "For them, this case is not about vindicating some abstract constitutional principle, but rather, to be able to carry on what is otherwise lawful, legal sex work in a manner that will not cause them grievous bodily harm or even death."

"Willy Pickton had his day in court, my clients want theirs," he said.