Prostitution challenge gets the green light

Enlarge Image

Chris Mikula / The Ottawa Citizen Archives Sex trade workers and their supporters gather on the front steps of the Supreme Court of Canada building in Ottawa as they challenge Canada's criminal laws regarding adult prostitution. (POSTMEDIA THE OTTAWA CITIZEN)

The Supreme Court of Canada has granted a group of Vancouver sex-trade workers the right to challenge Canada's prostitution laws. It was the right thing to do. It also followed five years of the federal government trying to stop them from having their day in court.

The sex-trade workers' advocacy group, the Downtown Eastside Sex Workers United Against Violence Society, and former sex-trade worker Sheryl Kiselbach were granted "public interest standing" by the Supreme Court, which allows them to continue their legal action to strike down parts of the Criminal Code as unconstitutional.

Prostitution is not illegal in Canada. However, any act in furtherance of prostitution is -- including communicating for the purposes of prostitution, living off the avails of prostitution, keeping a common bawdy house or transporting someone to a common bawdy house.

The group believes these laws breach their rights of equality, freedom of association and freedom of expression under the Charter of Rights and Freedoms. More pointedly, it also argues the laws put sex-trade workers at risk by making safe and secure brothels illegal, forcing sex-trade workers to ply their trade in the streets, where they're vulnerable to abuse and predators. Simply working indoors, working together, or communicating or organizing in any way for mutual protection are all prohibited by current prostitution laws.

The federal government had argued the group and the retired sex-trade worker couldn't challenge Canada's prostitution laws because they had no personal interest in the prostitution laws, none of them having been charged with a prostitution-related offence. The government maintained that because none of them had gone out and committed a crime, they couldn't challenge the validity of the law. The government position amounted to stonewalling them because they'd failed to break the law.

Public interest standing is the legal vehicle that enables individuals or groups such as the Downtown Eastside society to pursue legal actions without becoming felons. But, historically, it's only been fairly restrictively granted. There's a general judicial disinclination to deal with legal issues absent an actual factual narrative -- in other words, without a criminal wrongdoing or charge. Traditionally, courts don't answer questions in the abstract.

The federal government argued that were public interest standing to be granted to this group and individual, the floodgates would open to constitutional-challenges litigation from every public interest group under the sun.

The Supreme Court didn't rise to this fear. It took a liberal view of public interest standing this time round. In a unanimous decision it stated "a flexible, discretionary approach is called for" in assessing the awarding of public interest standing.

The court's decision was both fair and practical. Fair, because the group deserves to have their day in court. Practical, because who better to give relevant and compelling evidence about our prostitution laws than those who've felt the fallout from them on the mean streets of Vancouver's Downtown Eastside?

Republished from the Winnipeg Free Press print edition September 27, 2012 A10