Sex work, access to justice and the Supreme Court of Canada

For the past decade, I have had the great fortune of working closely with sex workers in the DTES and across the country who are fighting for safety, equality, legal rights and social protections for women and men in the sex industry. When I first began campaigning on this issue, I thought that, as a lawyer, I could make a particular contribution to this movement by bringing test cases that would advance rights and protections for sex workers. I thought that by providing pro bono legal representation, a major access to justice hurdle was overcome. However, what I did not know was that one of the biggest struggles would be for sex workers to simply get their day in court, and that there are many other systemic barriers for sex workers who want to engage the legal system to assert their rights. A long struggle for access to justice for sex workers continues and, in January 2012, Pivot will continue this fight at Canada’s highest court.

I want to take a moment to tell you about our courageous clients. Pivot was first retained by the Downtown Eastside Sex Workers United Against Violence Society (SWUAV), a non-profit society that is run by and for street-based sex workers in the DTES. SWUAV’s mandate is to fight for social and legal reforms to end violence and discrimination against sex workers. A few months later, Sheryl Kiselbach joined the case. Sheri is a former sex worker with 30 years experience in sex work. She now works as the violence prevention coordinator at PACE and is an outspoken member of the sex workers rights movement.  Sheri experienced significant harm as a result of working in a criminalized sex industry.

SWUAV and Sheri brought a constitutional challenge to the sections of the Criminal Code that relate to adult prostitution. When they initiated the case in 2007, the federal government responded by bringing a court application that claimed that SWUAV and Sheri do not have the legal right to challenge the laws. The gist of the government’s argument was that SWUAV and Sheri are not currently affected by the laws (because SWUAV is an organization, not an individual who could be arrested, and Sheri is no longer an active sex worker so she is no longer at risk of arrest). The government also argued that SWUAV and Sheri should not be permitted to challenge the laws because it was possible that an individual active sex worker could come forward to do so.

We spent a few weeks in BC Supreme Court arguing this point and presented the court with extensive evidence demonstrating that sex workers face enormous barriers and risks in this type of high profile, complex and controversial litigation. A few months later, the BC Supreme Court ruled against us, saying that SWUAV and Sheri did not have the right to argue this case. Our clients were not satisfied with that decision, so we appealed to the BC Court of Appeal, and were successful. The BCCA held that SWUAV and Sheri are entitled to challenge the laws. The federal government appealed the decision and now we are on our way to the Supreme Court of Canada to continue the fight.

It is important to recognize that, as Sheri and SWUAV have been involved in this lengthy battle for the right to challenge the prostitution laws, there was another important access to justice fight going on in Vancouver. In September 2010, the BC government announced that there would be a Missing Women Commission of Inquiry. In May 2011, Commissioner Wally Oppal ruled that a number of participants, including sex worker organizations such as SWUAV, were necessary for the Commission to fulfill its mandate. Commissioner Oppal also found that these groups would not be able to participate without financial assistance from government to pay for legal representation. The BC government, in an unprecedented move, denied funding to all of the participants, other than the coalition of families of the missing women. The result of that denial is that the Vancouver Police Department, RCMP and the provincial government’s criminal justice branch are represented by teams of taxpayer-funded lawyers, while community groups are unable to participate in any meaningful way. Sex worker groups, women’s organizations, First Nations groups and human rights organizations were shut out of the process.

What do these two cases have in common? They are painful examples of how our legal system creates insurmountable barriers for marginalized people who wish to use the law to assert their rights and interests.  SWUAV and Sheri’s case could have a huge impact in this regard. They will be asking the nine justices of the Supreme Court of Canada to reflect on the laws regarding “standing” (the right to bring a constitutional challenge to legislation) and to encourage the Court to apply legal tests for standing in a manner that takes into account factors such as whether the case brings a matter of public interest before the court, whether the claimant represents a vulnerable group in economic, emotional or social terms, whether the litigation raises issues that are likely to deter individuals from advancing them, such as issues of an intimate, private, or stigmatized nature, and whether the litigation raises a comprehensive challenge to legislation or state action.

If you want to read more about SWUAV and Sheri’s case, please feel free to check out theSupreme Court of Canada’s website where you can access all of the legal arguments and updates. We are excited to argue this case and hope it will bring an important shift towards access to justice for all marginalized and vulnerable groups.