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, 58, told the Georgia Straight in a phone interview 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. She said her worst incident as a sex worker occurred about 28 years ago, when she was stabbed by a customer who was later charged with attempted murder.
“Part of the reason I do safety workshops is because of so many unsafe things that happened to me, and I didn’t know what to do,” Kiselbach said.
On December 15, B.C. 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. Ehrcke also pointed out that constitutional issues can be raised by sex workers charged in hundreds of cases in B.C. every year.
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,’ ” she said.
Pivot Legal Society lawyer Katrina Pacey, who represented the two plaintiffs, told the Straight in a phone interview that an active sex worker could face serious repercussions by launching a constitutional challenge. “She might lose her clientele,” she said. “She might be outed within her community. She might be evicted. She might lose her licence to operate as an escort.”¦If she is in the Downtown Eastside, perhaps she’s collecting social assistance and they decide she should be cut off welfare.”
In a June paper posted on the Web site of Vancouver Rape Relief & Women’s Shelter, UBC associate law professor Janine Benedet and law student Thea Hoogstraten claim that the constitutional challenges against prostitution laws “present grave concerns for anyone who is committed to ending violence against women and to fighting for women’s equality”.
“The arguments in both the BC and Ontario applications fail to address the deeply gendered nature of prostitution,” Benedet and Hoogstraten wrote.