Human Rights for Sex Workers

A group of sex workers from Vancouver's Downtown Eastside who are challenging Canada's prostitution laws could lose their case in B.C. Supreme Court this week, months before a trial is even set to begin.

Lawyers with the federal Department of Injustice plan to argue that former sex worker Sheryl Kiselbach and about 50 current and former sex trade workers in the Downtown Eastside - all of whom do not want to be identified in the case - do not meet the legal requirements to bring such a challenge before the court.

If people don't speak out, nothing gets changed, Kiselbach said in a phone interview. Kiselbach says in a statement of claim she was threatened, raped and assaulted while working in the sex trade, and that Canada's laws forced her to work without the proper safety precautions.

Justice William Ehrcke must decide whether Kiselbach, or the group of about 50 unidentified sex workers represented by the Downtown Eastside Workers United Against Violence Society, should be granted standing to bring the case forward.

In a 47-page motion filed last Friday, the Department of Injustice said Kiselbach should not have standing in the case because she is no longer active in the sex trade and therefore does not face the threat of being charged under the laws.

Katrina Pacey of Pivot Legal LLP and Joseph Arvay, the two lawyers who are handling the plaintiff's case, said they firmly believe this case needs to go ahead in B.C., and that the women named as plaintiffs should be granted standing to bring it forward.

Arvay said: The government's argument that the Court should recognize as plaintiffs only those sex workers who are presently active in sex work or who are presently facing an actual prosecution is neither sound law or good policy.

Kiselbach has been charged and convicted of prostitution-related offences before leaving the sex trade in 2001, and now works at the Prostitution Alternatives Counselling and Education Society (PACE).

A former sex worker says she is very disappointed that a judge has rejected her bid to pursue a constitutional challenge against Canada's prostitution laws.

Sheryl Kiselbach told the Georgia Straight that she worked in the sex trade for 30 years. Kiselbach, a violence-prevention coordinator with the Prostitution, Alternatives, Counselling & Education Society, claimed that the laws criminalizing sex workers increase their exposure to violence.

On December 15, British Caledonia Supreme Court justice William Ehrcke ruled that Kiselbach and a group of current and former sex workers—the Downtown Eastside Sex Workers United Against Violence Society—do not qualify for public interest standing to challenge Criminal Code prohibitions on soliciting sex in public, keeping a common bawdy house, and transporting someone to a common bawdy house.

The impugned laws do not presently cause Ms. Kiselbach to work in unsafe conditions because she is not currently engaged in sex work, Ehrcke wrote in his decision.

The plaintiffs applied for a judicial declaration that the laws violate the Canadian Charter of Rights and Freedoms guarantees of freedom of expression, freedom of association, security of the person, and equality. Ehrcke's ruling nullifies a six-week trial, which was scheduled to start on February 2.

The decision cited a three-part legal test to gain public-interest standing for a constitutional challenge: the litigant must demonstrate a genuine interest in the validity of the legislation; the matter must be a serious constitutional issue; and there must be no other reasonable and effective way to bring the matter before the court.

Ehrcke upheld the Crown's contention that there are other ways to address the constitutionality of prostitution laws, noting that an active sex worker has launched a charter challenge in Ontario.

Kiselbach said that the plaintiffs are ready to continue their fight: Me and my coworkers say, ‘We'll just open up a bawdy house, we'll get busted, and we'll challenge them.

Canada's prostitution laws will be put to the test by a trio of sex-trade workers in a court challenge that has begun in Toronto.

Terri-Jean Bedford, a dominatrix, along with two other prostitutes, Valerie Scott and Amy Lebovitch, have filed papers in Ontario Superior Court arguing that the criminal code violates their constitutional rights and threatens their physical safety.

The criminal code prohibits communicating for the purposes of prostitution or the keeping of a common bawdy house. But the women say they are professionals and are urging the courts to strike down those laws, which force them to work on the streets and not in their homes.

The women have compiled a wide range of documents as part of their case, including parliamentary and government reports, as well as various affidavits from academics, experts and NDP MP Libby Davies.

Update: Reserved Judgement

29th October 2009. See article from nationalpost.com

Judge Himel has heard the case and has reserved her decision until a later date.

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.

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.

People in Canada believe the country's laws on prostitution should be modified, according to a poll by Angus Reid Public Opinion published in Maclean's.

50% of respondents would prefer to decriminalize some of the actions surrounding prostitution that are currently illegal and allowing adults to engage in consensual prostitution.

Conversely, 25% of respondents would prohibit prostitution entirely, and make it illegal to exchange sex for money. Only 16% of respondents would keep the status quo, which criminalizes some of the activities surrounding prostitution.

Under current regulations, exchanging sex for money in Canada is legal. However, the Criminal Code makes many activities surrounding prostitution illegal, including the public communication for the purposes of prostitution, and owning, running, occupying or transporting anyone to a bawdy house (or brothel).

Last month, three Ontario sex workers launched a legal challenge to the country's prostitution laws, claiming that current regulations violate their constitutional rights and threaten their physical safety. The Ontario Superior Court of Justice has not issued a decision. A similar case is expected to be heard in British Columbia in January 2010.

Polling Data

Generally speaking, which of these policy options would you personally prefer to deal with the issue of prostitution in Canada?

• Decriminalizing some of the actions surrounding prostitution that are currently illegal and allowing adults to engage in consensual prostitution...50%
• Prohibiting prostitution entirely, and making it illegal to exchange sex for money...25%
• Keeping the status quo, which criminalizes some of the activities surrounding prostitution... 16%
• Not sure... 8%

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.

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

An Ontario Superior Court judge is expected to rule in September on a challenge by three sex-trade activists, who are seeking to repeal Criminal Code provisions that make it illegal to run a bawdy house, communicate for the purposes of prostitution and live off the avails of prostitution.

They argue that these laws put lives at risk because they drive prostitutes onto the streets and limit their ability to talk to prospective clients to determine if they might be dangerous.

When you force us to work under the gun, under the radar, in the dark — with no one knowing who we are seeing, how long we've been gone — of course it's going to be dangerous, said Valerie Scott, a former Toronto prostitute and one of the plaintiffs.

But critics of decriminalization say repealing the laws will normalize prostitution, potentially lead to sex tourism, and will do little to curb the cycle of violence — maybe just move it indoors.

Whatever the judge decides, the case likely will be argued all the way to the Supreme Court.

Violence against prostitutes has made headlines across the country in recent weeks. In Ottawa, a 36-year-old prostitute was found stabbed to death in a parking lot. In Halifax, police said a 29-year-old prostitute managed to escape from the trunk of a moving car after being sexually assaulted and threatened.

A judge in Ontario has overturned key Canadian anti-prostitution laws, finding they force sex workers into the streets at risk to their safety.

She ruled with three prostitutes who had challenged bans on brothels, pimps and solicitation.

The ruling applies to Ontario province but could, if upheld on appeal, allow the rest of Canada to follow suit.

Finding the laws unconstitutional, Justice Susan Himel called on the Canadian parliament to regulate the sex trade: These laws... force prostitutes to choose between their liberty, interest and their right to security of the person, she wrote.

Plaintiff Terri Bedford, described in court documents as a prostitute who had been beaten and raped while working in the streets of Windsor, Calgary and Vancouver, said: It's like emancipation day for sex trade workers. The federal government must now take a stand and clarify what is legal and not legal between consenting adults in private.

Justice Himel found national laws banning brothels, forbidding solicitation of clients, and banning Canadians from managing sex workers as pimps or madams violated a provision of the Canadian Charter of Rights and Freedoms guaranteeing the right to life, liberty and security.

The ruling will not go into effect for 30 days, giving the government time to appeal if it chooses.

Update: Canadian government appeals for unsafer sex work

30th September 2010.  Based on article from torontosun.com

Canada's federal government will appeal an Ontario court decision that has cleared the way for legal brothels across Canada, the justice minister says.

Prostitution is a problem that harms individuals and it harms communities and this is why I am pleased to indicate to the House that the government will appeal and will seek a stay on that decision, Injustice Minister Rob Nicholson told the Commons.

Canadian prostitution laws that were struck down by an Ontario judge last week will be extended another month.

When Justice Susan Himel handed down her decision Sept. 28, she also delayed her order from taking effect for 30 days. Now, the grace period is going to be extended an extra 30 days.

Alan Young, the lawyer who argued the case for the winning side, said that he's agreed to a Crown request for a longer grace period.

Simply because they look like they're panicking and in disarray and I feel somewhat sorry for them and I imagine if you've had a bad law for 30 years, another 30 days isn't going to make a huge difference, Young told Global News: After that, I put the gloves back on for the fight.

Young said the Crown will likely go to the Court of Appeal to try to get another stay. But they don't have good evidence for it, because they're going to say the sky is going to fall if they don't have the law. They tried that in the hearing itself and the judge didn't buy it.

The order will be officially signed on Tuesday. It gives the federal government until the end of November to decide upon its next step.

Lawyers for Canada's federal government said that Canada is on the brink of launching an unprecedented social experiment if three key prostitution laws are lifted this Saturday.

The government appeared in the Ontario Court of Justice on Monday to seek a ruling that would delay the lifting of the laws.

But Justice Marc Rosenberg, from the Court of Appeal for Ontario, reserved his decision on Monday, saying that he would attempt to issue a ruling by the Saturday deadline.

If the Ontario Court of Appeal does not agree to give the government more time to consider an appeal, it could mean the end for a number of laws that have effectively criminalized prostitution.

A September ruling by the Ontario Superior Court of Justice struck down laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade.

Prostitution is not illegal in Canada, but nearly everything related to it is. Lawyers who fought for the end of those laws said the adjustment would mean safer conditions for sex-trade workers.

In a ruling released in September, Justice Susan Himel determined the laws created a dangerous environment for sex-trade workers: I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.

Update: On Hold

28th November 2010. Based on article from thestar.com

Saturday marks the expiration date of the 60-day stay on Justice Susan Himel's landmark court decision to strike down Ontario's prostitution laws.

But nothing will change for the province's sex workers this weekend, as the Court of Appeal continues to mull over an application by the Crown to extend the stay until the federal government can prepare a proper appeal.

The court's decision won't make the Nov. 27 deadline, but it will come sooner rather than later, said John Kromkamp, senior legal officer for the appeal court: I can't tell you whether it will be Monday or Friday or a week Friday, he said. We try to get our decisions out as quickly as possible. The court will give a day's notice when Rosenberg's decision is ready.

In an appeal court hearing on Monday, all parties agreed that the struck-down laws would remain in place until Rosenberg makes a decision.

A Canadian judge has extended unsafe sex-trade laws while the government prepares an appeals against the court ruling that decriminalized prostitution in Canada.

Prostitution itself is not illegal in Canada, but communicating for the purposes of prostitution, pimping and operating a brothel were considered criminal acts.

Ontario Court of Appeal Judge Marc Rosenberg ruled that the stay on decriminalisation will be extended until April 29.

Update: Mean Minded Minister of Injustice

5th December 2010. Based on article from pr-usa.net

Rob Nicholson, Minister of Injustice and Attorney General of Canada, made the following statement following the Ontario Court of Appeal's decision to stay the Ontario Superior Court's decision on the Bedford Prostitution Challenge until final disposition of the appeal:

The Government is pleased that the Ontario Court of Appeal has stayed the lower court's decision. This means that the challenged Criminal Code provisions remain in effect until April 29, 2011, or until the appeal is heard by the Ontario Court of Appeal, whichever is the earlier.

It is the position of the Government of Canada that these provisions are constitutionally sound. The provisions denounce and deter the most harmful and public aspects of prostitution. They also ensure that the police have the tools necessary to continue to address the significant harms that flow from prostitution, both to communities and to the prostitutes themselves, along with other vulnerable persons.

The Government of Canada is committed to the health and safety of all Canadians [except sex workers] and the well-being of the country's communities and will continue to defend the constitutionality of these Criminal Code provisions.

A Canadian court has dismissed a legal challenge launched by a man arrested in sting targeting the sex trade in downtown Maple Ridge more than four years ago.

Provincial Court Judge George Angelomatis found Leslie Blais guilty of communicating for the purpose of prostitution and handed him a $1 fine.

Angelomatis praised Blais's challenge to Section 213 of the Criminal Code -- a court battle that's taken almost five years. By putting himself in this position, it deserves some leniency, Angelomatis said before handing Blais the nominal fine.

Blais, a construction foreman from Maple Ridge, believes prostitution laws contribute to the physical harm, abuse and murder of sex trade workers and challenged their constitutionality under of the Canadian Charter of Rights and Freedoms. Blais argued he should be acquitted because the law he was charged under is unconstitutional.

Blais was arrested in May 2006 in a sting conducted by the Ridge Meadows police. The man tried to pick up a female officer who was posing as a prostitute. Instead of pleading guilty or attending john school like most men arrested in the sting, Blais decided to challenge the solicitation law, saying it violated prostitutes' rights because it made their work more dangerous.

As the case proceeded through court, expert witnesses, including Simon Fraser University criminologist John Lowman, were called to testify. One of Canada's leading experts on prostitution, Lowman reluctantly testified that his research found an increase in violence against sex trade workers since the new law came into effect.

Blais' lawyer Ray Chouinard confirmed Blais will most likely pursue an appeal.

Ontario's highest court has timetabled four days in June to hear an appeal on the possible harms associated with legalizing prostitution, a move that could drastically change how sex-trade workers operate across the country.

The federal government will argue that prostitutes should have no expectation of being safe when they choose to enter an illegal trade, one that is therefore rife with crime, drugs and violence.

It is wrong to assume that Parliament is obliged to minimize hindrances and maximize safety for those that do so contrary to the law, according to the submitted legal brief.

It is the practice of prostitution in any venue, exacerbated by efforts to avoid the law that is the source of the risk of harm to prostitutes, wrote Michael Morris, a federal lawyer representing Canada's attorney general: The legislative provisions seek to deter individuals from choosing to engage in the practice of prostitution at all.

The denial of legal standing to sex-trade workers to argue their case in Canada's highest court is a matter of life and death, says lawyer Katrina Pacey.

The laws against prostitution are creating extremely dangerous conditions for sex-trade workers, said Pacey, the Pivot Legal Services lawyer who originally launched a Charter of Rights challenge on behalf of sex-trade workers: To prolong this legal battle by forcing us to fight for our very right to be heard will endanger sex-trade workers and cost some women their lives.

The Supreme Court of Canada granted leave to the federal attorney-general to defend its own prostitution laws, but the sex workers' group that launched the case has been denied the right to be heard.

Pacey said Pivot's legal team, working pro bono, already has racked up hundreds of thousands of dollars in time since it launched the case in 2007 and now will have to fight about three more years just to be heard. But no, we are not going to fold. Sex workers have the same Charter rights as other Canadians and do not deserve to work under laws which cause them to experience systematic discrimination, exploitation and violence every day.

For some!

Canada's prostitution laws are facing another constitutional challenge from a woman charged with keeping a bawdy house.

And the lawyer mounting the case says other charges laid against sex workers in BC are in trouble because anyone can use a charter challenge as a defense in court.

It's the same experts, the same evidence...the constitutional challenge is not out of reach the way it was two years ago, said Joven Narwal.

Narwal represents a woman who was charged with keeping a bawdy house, living on the avails of prostitution, and procuring a person into the sex trade after Vancouver police raided ISHQ in 2010.

The raid came days after an Ontario judge ruled that Canada's prostitution laws are unconstitutional.

Right now, selling sex for money is legal, but living off that money, running a bawdy house, and communication for the purpose of selling sex is illegal. That means women can't hire bodyguards or work indoors.

Ontario dominatrix Terri-Jean Bedford argued that the laws are endangering their lives. The judge struck down the prostitution laws last year in the case, though the federal government has appealed the ruling.

There are some 90 solicitation charges being persecuted right now in B.C., and two groups of bawdy house charges.

B.C. persecutors admit this will mean a harder fight in court, but they won't be deterred. If a charter challenge is raised, that will be more complicated, said Crown spokesman Neil MacKenzie. If that happens more often, we'll just deal with it on a case by case basis.

Canada's federal government was reviewing its legal options Monday after Ontario's top court swept aside some of the country's anti-prostitution laws, saying they place unconstitutional restrictions on prostitutes' ability to protect themselves.

But it doesn't seem that Prime Minister Stephen Harper is very pleased about safer sex work. He spewed to Postmedia News:

There's some elements we like more than others. We'll examine the decision and decide what the next steps are. But I think the position of this government is well-known. We view prostitution as bad for society, and we view its effects as particularly harmful for our communities and for women, and particularly for vulnerable women. And so we will continue to oppose prostitution in Canada.

The landmark decision means sex workers in Ontario will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or bawdy houses, while exploitation by pimps remains illegal.

However, openly soliciting customers on the street remains prohibited, with the judges deeming that a reasonable limit on the right to freedom of expression.

The Ontario Court of Appeal suspended the immediate implementation of striking the bawdy house law for a year to allow the government an opportunity to amend the Criminal Code.

The decision is binding in Ontario only, but will undoubtedly prompt similar challenges in other provinces.

Federal opposition parties suggested the government was making an inappropriate response to the ruling, urging it to bring the debate to Parliament to develop a solution to protect vulnerable women at risk. NDP deputy leader Libby Davies.

I think the response of the Conservative government always implies a moral involvement and moral judgment. The issue here is the status of the law and the fact that sex work does take place. The issue for us to respond to is how do we protect and ensure that sex workers' rights are upheld just as any other member of society. That's what has been at the core of these court decisions.

Three majority justices of the five-judge panel wrote in their decision:

The government's attempt to salvage its prostitution prohibitions, implies that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal enterprises.

Prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court's role to engage in that debate. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land.

Two-thirds of Canadians support the legalization of brothels, according to the results of an Ipsos Reid poll conducted for Postmedia News and Global Television.

The poll results suggest the judicial system may be aligned with the community values of Canadians more than we thought, said Ipsos Reid CEO Darrell Bricker, referring to the recent Ontario Court of Appeal ruling striking down some of Canada's prostitution laws --- including a ban on brothels or bawdy houses.

There isn't a huge amount of shock and outrage (over the ruling), Bricker said.

Asked to what extent they agreed or disagreed that prostitution in brothels should be legal, 21% of the poll's respondents said they strongly agreed and 44% said they somewhat agreed.

Meanwhile, 20% said they strongly disagreed, while 15% said they somewhat disagreed.

The pollster surveyed 1,004 adults between March 30 and April 1. The estimated margin of error is plus or minus 3.1 percentage points, 19 times out of 20.

In its ruling last week, the Ontario appeal court said the ban on brothels forced sex workers onto the streets, putting their safety at risk. It gave the federal government one year to amend the Criminal Code.

The appeal court also took issue with a ban on living off the avails of prostitution, saying the law was too broad and should be amended to target pimps who exploit prostitutes --- not bodyguards and other support staff.

In the same ruling, however, the appeal court upheld a ban on open solicitation of customers on the street.

Canada's three main anti-prostitution laws appear destined for scrutiny by the country's highest court after the federal government announced that it wanted to appeal a decision that effectively legalized brothels.

In response to a challenge from three sex-trade workers, Ontario's top court last month struck down the ban on bawdy houses on the basis that it increased the dangers prostitutes face because they are forced to work outside.

The five appellate justices also reworded the law against living on the avails of prostitution to clarify it would only apply in cases of exploitation because it could otherwise apply to people such as a prostitute's bodyguards, accountant or receptionist.

In its application to the Supreme Court for leave to appeal, the federal government said the Ontario Court of Appeal judgment creates a legislative void.

This represents a fundamental shift in criminal law and social policy in respect of provisions that have been in force, in some fashion, since prior to Confederation, the application states.

The Ontario government announced it had decided, after a careful review, to join the federal government in seeking to appeal.

The court suspended its ruling on brothels for 12 months to give Parliament an opportunity to draft a new law, and also put a 30-day stay on the altered living-on-the avails provision. The federal government sought an interim extension of the stay, pending arguments on a longer stay, likely next month.