(Vancouver, Canada) Sex workers in two provinces are challenging Canada’s solicitation laws in different ways but with a common desire—to work and live with greater dignity.
In the province of Ontario, a Charter of Rights and Freedoms case is well underway and is based out of Toronto. The suit is being handled by well-known activist lawyer Alan Young. As he’s an Osgoode Hall Law professor vital case preparatory work is being performed by articling students.
The calendar is marked for October 5, 2009. The Ontario Superior Court is scheduled to hear what’s become of this on-going constitutional challenge that has the aim to strike down three sections of the Criminal Code. These include: prohibitions on keeping a bawdyhouse, living on the avails of prostitution and communicating for the purposes of prostitution.
In Vancouver, British Columbia it’s clear that the action is moving at a much slower pace. A judicial roadblock has been put in the way. On December 15 2008, Supreme Court Justice W. F. Ehrcke of British Columbia refused to proceed to hear the claims brought forward by the plaintiffs which are, Downtown Eastside Sex Workers United against Violence Society and Sheryl Kiselbach.
Ehrcke’s ruling indicates that claims may only be brought by a currently-practicing sex worker. And because Kiselbach declared herself a former sex worker she is deemed to have no legal standing. She’s believed to have no case with which to proceed.
In other words the Justice would only listen to a practicing sex worker.
Some critics of the ruling have suggested that this tends towards a sort of “Gotcha!” mentality, that— despite the thinking that one isn’t supposed to surmise about what’s going on in a Justice’s mind—under present law—it could be argued that such a person could be considered a defendant in Ehrcke’s court and not a legitimate Charter [of Rights and Freedoms] appellant.
“Catch 22” legal chicanery of this nature obstructs those seeking a more progressive and constructive application of Canada’s human rights laws in dealing with sex work.
Fortunately, in Ontario, there’s no question that better legal process can be reported.
According to Alan Young who’s leading the challenge there: “Bringing this case is of utmost importance because, despite the fact that prostitution is a legal occupation, the current Criminal Code provisions operate to deny sex workers safe legal options for conducting their legal business. Ultimately this fight is destined to go all the way to the Supreme Court.”
The appellants—Amy Lebovitch, Valerie Scott, and Terri Jean Bedford—are sex workers.
They want the laws struck down as unconstitutional. They will argue that they violate their Charter rights to life, liberty and security of the person, as well as their Charter right freedom of thought, belief, opinion and communication.
To be clear, Lebovitch does not favour legalization of sex work. It’s decriminalization she seeks. “The movement is toward exemption, not unlike the decriminalization paradigm operating in New South Wales Australia at this time.”
Decriminalization is commonly confused with legalization, but there are key differences. Legalization is viewed as a potentially overbearing state overseeing and regulating sex workers. While decriminalization would simply remove specific sections of the criminal code from the law books.
Meanwhile the City of Vancouver seems to have tacitly accepted the need for sex workers to protect themselves. Susan Davis, a long-time spokesperson for sex workers’ rights, reports that she’s been granted an opt-out to operate a safe house. The safe house is to be a self-managed workplace with working safety central to its operation.
In effect, the city of Vancouver is said to be operating an informal blind-eye policy while the legal battles resolve themselves. The city’s general approach encourages constructive city-community relations as it works with self-policed sex workers in creating this safe house-initiative template.
Workers and clients can feel protected from the violence and extortion so often a feature of the street world; and police are relieved of the requirement to investigate and process responsible workers, secure in the knowledge they are maintaining good order and a concern for community safety.
Nearby in Victoria, Jody Paterson has helped to establish a cooperative where a percentage of trade proceeds go to job-option alternatives and drug programs for workers who want to leave the trade. Paterson, who once served a three-year term at Prostitution Empowerment Education Resource Society (PEERS), in Victoria is also known for putting pressure—some say shaming—Canadian unions to take up the safety for sex workers’ cause. For her, the issue is one of workers’ rights.
Paterson’s and PEERS’ work have resulted in a much improved social support network for workers. Yet the Victoria community has yet to hear a great deal about this union-activist piece of the story since mainstream publications have yet to take up the subject in any great depth.
Nevertheless, workers’ access to resources and information continues to improve together with their opportunities to combine and mobilize. It is to be hoped that the Charter litigation will soon be supported by the appropriate Trades Unions. Since these issues are undoubtedly workers’ rights issues, the strong and interested support of organized labour must be natural and urgent.
Libby Davies has been busy putting pressure on fellow politicians. For more than a decade, the Member of Parliament (NDP, Vancouver East) has sought changes in sex work-related laws at the municipal and federal levels. Davies and her colleagues managed to get an all-party Commons review committee to study sex work safety.
“The report does not go as far as to recommend decriminalization—which is what I wanted—but it says that three [political] parties believe that the state should not intervene or prohibit consenting adult sexual activity,” Davis explains. She believes that the language in the report is pivotal.
Davies backed the safe house initiatives in Vancouver. “Of course, it is quite controversial,” says Davies, who met with women’s committees in the B.C. Federation of Labour and the Canadian Labour Congress. “Unions are very interested in this issue,” she continues, noting that, the women’s committee of BC Federation of Labour is somewhat divided on the issue, not unlike the wider feminist community.
“Some feminists say sex work is inherently exploitative, but I think that is an unrealistic position. The key question is to differentiate what is consensual adult behaviour and what is harmful. Using the analogy that there is violence in marriages, our response is not to ban marriage.”
Davies adds, “It is far preferable to have a place run by sex workers themselves; they have control of comings and goings; they have people close by to monitor what is going on. Sex workers are in incredible danger, especially the street sex workers.”
Davies predicts that a successful lawsuit in tandem with progressive community support “will create almost a compulsion in Parliament to have-to embrace the safe-house concept.”
Davies plans to put forth a private member’s bill in support of decriminalization. This parliamentary motion would ask that those running a safe house be given exemption from the Criminal Code under right to life, liberty, and—importantly, security, [thus] protected by the Charter. This suggests that the police could simply not enforce the controversial aspects of the Criminal Code that are being disputed in court, until the results could be analyzed and more proactive and sensible policy measures can be developed and executed in concert with sex workers themselves.
Davies and Paterson are closely watching the Ontario case, which also emphasizes safety concerns. Lebovitch explains that fear of being arrested by police means that sex workers are more inclined to work alone rather than in groups of two or three, which would be much safer.
The bottom line is that sex workers and their advocates want to ensure that sex workers are no longer a segregated labour class having to work under inhumane conditions and on the wrong side of the law.
“You would hope that everyone would agree that we should be allowed the same rights and freedoms that others in Canada experience,” says Lebovitch. “People should not be afraid of us. We are not home-wreckers, immoral women. We are mothers, daughters, friends, lovers.”
The legal team and the Crowns from the Attorneys General of Canada are due to argue the case, in Ontario, in the fall of 2009; however, the case is likely to be resolved eventually by the Supreme Court of Canada where it could take a couple of years to render a judgment.
British Columbia’s case is now in the air, having been scuttled by last December’s surprise ruling of Justice Ehrcke hence the need for re-grouping in the Vancouver community for the moment.
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