Sex-trade workers group wins bid for court challenge

The Supreme Court of Canada has upheld the right of a non-profit group representing women and transgender women in downtown Vancouver's sex trade to challenge the country's anti-prostitution laws on constitutional grounds.

The ruling means the group can go back to B.C. Supreme Court to pursue a case it launched five years ago against a broad range of provisions, including keeping a bawdy house, living off the avails of prostitution and communicating in a public place for the purposes of prostitution.

In making its ruling, the court looked at the three considerations for granting legal standing:

Whether the matter is a serious legal issue.

Whether the party bringing the case has a stake in the outcome.

Whether the proposed suit is a reasonable and effective means of bringing the matter before the court.

The B.C. Court of Appeal had found the group's request for standing passed the first two tests when it overturned a lower court's ruling that denied them standing.

But Friday's top court ruling goes further in finding that the case meets all three tests.

"[C]ourts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality," Justice Cromwell writes in the decision.

"A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing. There is no binary, yes or no, analysis possible," Cromwell writes.

"In this case, all three factors, applied purposively and flexibly, favour granting public interest standing to the respondents."

At stake in the Supreme Court's decision was the broader question of whether an advocacy group, or a person not directly related to a case, can be given standing in a constitutional challenge.

On Thursday, Katrina Pacey, a lawyer for the Downtown Eastside Sexual Workers Against Violence, explained the importance of the court giving public interest standing to the sex workers' group.

"This would provide a real opportunity for marginalized people, people with mental health issues, people with HIV, prisoners, refugees, children to form a collective organization whereby they then have the support and capacity to bring these cases forward, as a community," Pacey said.

The sex workers' group began the action in B.C. Supreme Court five years ago, claiming the law infringed several of their members' charter rights.

A former sex trade worker, Sheryl Kiselbach, then asked to be included in the case. Kiselbach worked for approximately 30 years as an exotic dancer, performing live sex shows, working in massage parlours, conducting street level sex work and working independently in indoor sex work.

The federal government was able to have the B.C. court claim dismissed, arguing that neither the sex workers' group nor Kiselbach had public or even private interest standing in the case. The argument the government used is that Kiselbach is no longer a sex trade worker and therefore can’t be discriminated against by prostitution laws. It also argued that the sex workers' group is not a person whose rights can be infringed.

However, the B.C. Court of Appeals reversed that decision. The federal government then appealed to the Supreme Court of Canada.

The government argued that a limit on granting public interest standing to groups avoids "opening the floodgates to unnecessary litigation" and warned that otherwise, "cases will be inadequately presented by parties who have no real interest in the outcome."

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