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.
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.
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.
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%
Sex workers maintain that they have the right to challenge the ban on prostitution
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.
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
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
Update: Canadian government appeals for unsafer sex work
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.
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.
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 .
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.
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.
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
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.
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.
This Thursday, the Supreme Court of Canada is set to hear Bedford vs. Canada , a case on the constitutionality of criminal laws governing sex work. The case, brought forward by three sex workers, Terry-Jean Bedford, Amy Lebovitch, and Valerie Scott, is a
direct result of the refusal of consecutive federal governments to respond to enormous volumes of evidence that these laws do more harm than they prevent.
The science is unequivocal: criminalization of sex work in Canada, and
globally, has been an abject failure in protecting sex workers from violence, predation and murder, and has exacerbated vulnerability to HIV and other health inequities among sex workers. While the buying and selling of sex between consensual adults has
never been illegal in Canada, criminal laws prohibit working together indoors, owning or renting an indoor place for sex work, living off the avails of prostitution, or communicating in public spaces for the purposes of sex work by sex workers, clients
or third parties. Together, these laws make it virtually impossible for a sex worker to work legally, even though the act itself is not forbidden. Evidence has consistently shown that these criminal laws engender stigma, force sex workers to work in
isolated and hidden spaces, and prevent access to basic health and support services, including legal and social protections.
The supreme court of Canada struck down all current restrictions on prostitution, including bans on brothels and on street solicitation, declaring that the provisions unconstitutionally violated prostitutes' safety.
The sweeping 9-0 decision will take
effect a year from now, inviting the Canadian parliament to come up with some other way to regulate the sex trade, if it chooses to do so.
The court found that existing provisions against sex workers were overly broad or grossly disproportionate.