A Matter of Standing: Challenging Prostitution Laws in BC [Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence, et. al]

A few years ago I was in Amsterdam with a friend. Unfamiliar with the canal system frenzy, we accidentally found ourselves lost in the notorious Red Light District. As twilight turned to darkness, women began filling the windows of the brothel-laced streets in their invitation to treat. Several wrong turns later, we were completely lost but engaged in a debate about the merits of legalising sex work. We were rather lost, so the debate inevitably extended and became increasingly heated. There were disagreements as to the safety of the sex workers, the uncertainty of knowing whether they were trafficked, whether they had any choice and whether that made any difference.

One thing we could agree on is that sex will always be in high demand. When people cannot get sufficient supply, a market will develop and some will opt for purchase. Well, there’s a market in Canada, and that market creates conditions that are inherently dangerous for those who work in it. Only once I heard about Professor Alan Young’s challenge to certain Criminal Code of Canada (hereafter “CCC”) provisions in Bedford v Canada 2010 ONCA 814, did I understand the systemic problem in Canadian prostitution laws: the provisions are archaic and facilitate a system that enhances the danger that sex workers must face on a daily basis.

While it may seem a bit like Déjà vu as several of the CCC provisions relating to prostitution have just been challenged as charter violations in Bedford, the Supreme Court of Canada (SCC) here will be deciding whether the parties bringing the challenge have standing. In Attorney General of Canada v Downtown Eastside Sex Workers United Against Violence Society, et al 2010 BCCA 439, three parties are challenging the current Canadian criminal law offences that prohibit various aspects of prostitution: an organization of street level sex workers; the Downtown Eastside Sex Workers United Against Violence Society (SWUAV); and Ms. Kiselach, a former sex worker. They claim these provisions violate their Charter rights. While their claim is a Charter challenge, at this stage of the proceedings, the Attorney General of Canada (AGC) is appealing the British Columbia Court of Appeal (BCCA)’s decision that SWUAV and Kiselach have public interest standing in this case.

Issue At Law

The Respondents challenge the following sections of the CCC:

• s. 213, which prohibits any person from stopping or communicating with any person in a public place for the purpose of engaging in prostitution (the “Communication Law”);
• s. 210, which prohibits being a keeper, inmate or occupant of a common bawdy house or knowingly permitting a place to be let or used for the purposes of a common bawdy-house, as an owner or someone in charge or control of the place and s. 211, which prohibits taking, transporting or directing any other person to a common bawdy-house (collectively, the “Bawdy House Law”); and
• s. 212, which prohibits procuring and related conduct, including facilitating or managing another person’s involvement in prostitution and living on the avails of prostitution (the “Procuring Law”).

The Respondents allege the Prostitution Laws, both as individual CCC provisions and as a legislative scheme, infringe sex workers’:

• s. 7 liberty interests due to the possibility of arrest and imprisonment;
• s. 7 rights to security of the person, given that the Prostitution Laws prevent sex workers from taking steps to improve the health and safety conditions of their work;
• s. 15 equality rights, given the Prostitution Laws’ discriminatory effects on sex workers who are a disadvantaged group;
• s. 2(b) expression rights in that s. 213 of the Criminal Code limits communication that could serve to increase their safety; and
• s. 2(d) association rights because sex workers are prevented from joining together to increase their personal safety.

At this juncture, the SCC will be applying the test for public standing as set out in Canadian Council of Churches v Canada, [1992] SCR 236. The court must determine whether there is a serious issue to be tried, (2) whether the complainant has a genuine interest, and (3) whether this is a systemic claim.  While the first two criteria are easily met, the AGC contests that “systemic challenges do not justify granting public interest standing more readily than in a more confined case.” The respondents disagree and submit that by its nature, such a systemic challenge both justifies a grant of public standing and should cause a court to prefer it.

Procedural History

At first instance, Ehrchke J of the British Columbia Superior Court (BCSC) found that Kisselbach and SWUAV did not have standing, either private or public, to challenge the validity of the provision in issue.  However, the British Columbia Court of Appeal (BCCA) granted public interest standing in October 2010. Saunders JA writing for the majority emphasized that the entire analysis for public interest standing is to be performed in a liberal and generous manner. This decision was heard by the SCC in January 2012 and the judgment is now reserved.

Appellant’s argument

The AGC claim that the facts at hand do not justify granting public interest standing more readily than a more confined case. Courts have imposed restrictions on standing in order to control the proper use of the court and its resources. They submit that the BCCA erred in finding the respondents’ pleadings disclosed a serious issue to be tried respecting the constitutionality for two reasons:

• “the reasons for judgment do not fully reflect the systemic and comprehensive nature of the challenge advanced”; and
• the judge failed to give sufficient weight to the breadth of the constitutional challenge and the comprehensive and systemic nature of the plaintiffs’ theory”.

Rather than this case be brought forward, the respondents should have brought a generalized attack on the legislation. They prefer to have individuals bring challenges as litigants with private interest standing.

Respondents’ argument

SWUAV and Ms. Kielbach defend the BCCA’s decision and submit that the court was correct on the finding that both plaintiffs had a public interest standing. There is extensive evidence demonstrating barriers that sex workers, and particularly street based sex workers, face in attempting to initiate this type of litigation. The plaintiffs submitted 94 affidavits from sex workers from Downtown East Side neighbourhood of Vancouver, British Columbia (DTES) who described their particular vulnerability, social exclusion and barriers to accessing government services and protections. It would be extraordinarily difficult to bring this matter to the court while still practicing as a sex worker. On top of it all, they claim that private interest standing is a “Trojan horse anyway.” A claimant comes in about a charge on one very narrow matter. If then the claimant is challenging the constitutional efficacy of the matter, it becomes significantly broader than the initial claim. The initial claim is used as a foot in the door to challenge the validity of the impugned provision and perhaps the law in its entirety.

Bedford Déjà vu? Unlikely

With the media frenzy surrounding Beford, the obvious question that this case raises is that of redundancy. The CCC is Federal, so why bother trying this case in British Columbia if has been tried and being pursued in Ontario with Bedford v Canada? 

The appellants in paragraph 26 of their factum explain, “Bedford illustrates that if public interest standing was not granting to the society and Ms. Kiselbach, there may nevertheless be potential plaintiffs with private interest standing who could bring all of these issues before the court”. The CCC is of national application and the question raised by the test for public interest standing is whether the provisions in issue are immunized from attack, not whether there is a binding precedent about to be created in the same jurisdiction.

The respondents explain that the case brought by the plaintiffs in Bedford, as private interest plaintiffs, is also a broadly based challenge, and one in which the court heard extensive evidence on a multitude of issues, introduced by numerous non-parties. That litigation proceeded in a reasonable amount of time and in a manner consistent with an appropriate judicial role. Additionally, Bedford does not contest several provisions in the CCC relating to prostitution that are challenged by SWUAV and Ms. Kielbach. Bedford has not made a case that impugned provisions violate ss. 15 or 2(d) of the Charter. Finally the respondents address the issue of time in the Canadian judicial system. The Bedford case originates in Ontario and would have no reach respecting the laws as applied in British Columbia for many years.

What’s at Stake

Kiselbach says she would not have been able to participate in this type of constitutional challenge when she was active in sex work because of the risk of public exposure, fears regarding her personal safety, and the potential loss of access to social service, income assistance, clientele and employment opportunities. There are many repercussions for sex workers coming forward. The public interest exception exists for this very reason: to allow for marginalized communities to have claims come forward to defend their rights, even when they are not necessarily charged themselves. The issue is that when these women are charged with these criminal offences, they cannot bring these issues forward for the fears stated above. It is only once they are out of the trade and therefore do not qualify for private party standing that they would have the power to come forward.

Big deal, the court gets overburdened with cases. These women need protection. If Pickton was not enough [Pickton who was charged with the murder of 27 drug addicted sex workers from DTES and convicted on 6 counts] or the fact that women in DTES face a murder rate 60-120 times higher than that of the average community then consider the following statistics:

• Sex workers in DTES have the lowest per capita income;
• They are most often female, disproportionately of First Nation ancestry, and face a range of health issues (HIV/AIDS, hepatitis, mental health issues, drug and alcohol addiction).
• They are the textbook case of marginalized individuals.

It is no wonder that they do not have the resources, including the inclination, to bring the case forward while they are still working on the streets.

The BCCA followed the test laid out in Canadian Council of Churches. Arguably, the BCCA may have stretched the test for public interest standing, but the doctrine of public interest standing must be interpreted with an element of “common sense.” This element allows for the appreciation as to the difficulty of mounting an individual legal challenge. Whether or not the court should repeal the laws is a different matter, and should have its time in court. Let these sex workers have a voice in court to have the court hear these issues. Silencing them would push them further back into the marginalized society from which they come.