September 21, the Supreme Court of Canada gave Sheryl Kiselbach, a former sex-trade worker, and a group representing such workers the right to challenge Canadian prostitution laws.
The case – the Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society & Kiselbach – dates back to 2007, when Ms. Kiselbach and SWUAV filed a constitutional challenge to prostitution laws on the basis that the regulations made sex work dangerous.
The federal government argued they didn’t have the right to pursue the case, as neither Ms. Kiselbach nor the group were at risk of being charged under the laws in question. The case made its way to the Supreme Court of Canada, which in September ruled that Ms. Kiselbach – who now works with a violence prevention group – and SWUAV had public interest standing.
As the B.C. case made its way through the courts, Canadian prostitution laws were also being challenged in Ontario, through a case brought by Terri-Jean Bedford. In that case, Ontario courts have found some, but not all, prostitution laws unconstitutional.
Katrina Pacey is a lawyer with Vancouver-based Pivot Legal, counsel for Ms. Kiselbach and SWUAV.
What happens now?
The next step is that we go to trial in B.C. Supreme Court. The question is, what’s the timing going to be for that? The reason we don’t know the timing is the Bedford litigation, which is ongoing in Ontario.
[The cases] are not formally tied together, but there are overlapping legal issues. And the Bedford case, because it’s likely headed to the Supreme Court of Canada next year – the outcome of that will be binding on our case.
So the minute [the Supreme Court of Canada] has that decision, some of the issues in the SWUAV and Kiselbach case will be moot or resolved, because there will be a Supreme Court of Canada judgment on those exact questions.
We have to figure out whether it is prudent to go to trial anyway and get going on everything that is in our claim, or to wait until the Bedford decision to be concluded and to carry on with what is remaining.
Our legal team is working on that now.
What is the biggest difference between the B.C. case and the Bedford case?
[The Kiselbach and SWUAV] claim is a broader claim – because it challenges most of Section 212, the procuring provision [under the Criminal Code]. Whereas the Ontario case only deals with living on the avails of prostitution, which is one portion of that.
What is the goal of this case?
It is to decriminalize adult sex work, thereby giving sex workers greater control and the ability to take steps and measures to work safely and in conditions that are good for them.
Some critics say decriminalization would amount to saying that it’s okay for women to be exploited and abused – what would you say to that?
I would say sex workers are a diverse community. They have varying perspectives and reasons for why they are involved in sex work and what circumstances led them there. The criminal laws have failed. No matter what sex workers’ goals may be, or society’s goals may be – because all we have seen is increased violence, increased harm and perpetual stigmatization of this group.
