OTTAWA, September 24, 2012 ( – The Supreme Court of Canada has upheld a BC Court of Appeal ruling that allows a former prostitute and a Vancouver based pro-prostitution lobby group to challenge Canada’s prostitution laws in court.

In the judgment delivered by Justice J. Cromwell on September 21, the Supreme Court affirmed a 2010 ruling that granted public interest standing to the Downtown Eastside Sex Workers United Against Violence Society (SWUAV), and private interest standing to a former prostate, Sheri Kiselbach. This allows them to launch a Charter challenge of the Criminal Code’s provisions against keeping a common bawdy house, living on the avails of prostitution and communicating for the purpose of prostitution.

In the 2010 ruling, Madam Justice Mary E. Saunders had overturned a December 2008 ruling by the BC Supreme Court that found that Kiselbach and SWUAV did not have legal standing because they were not impacted by current laws against prostitution.

The court records of the 2008 ruling state that though Kiselbach had spent 30 years “engaged in a number of forms of sex work,” she left the sex industry in 2001 and therefore did not have standing to launch a suit against the prostitution laws. The BC Supreme Court also ruled that SWUAV could not be granted public interest standing because the group hadn’t been charged under the laws.

However, Kiselbach and SWUAV appealed that ruling in January, 2009 and were successful when Justice Saunders decided that “the impugned provisions of the Criminal Code deprive sex workers, whose work itself is lawful, of the ability to conduct their work safely.”

Saunders argued that “the communication provisions push sex workers into isolated areas, working alone where assistance is not near at hand, that the bawdy house provisions deprive sex workers of the opportunity to work indoors in a safer setting, and that the procurement provisions limit the ability of sex workers to establish safer working environments.”

“In this case,” Justice Saunders wrote, “I respectfully conclude the judge (in the 2008 Supreme Court decision) failed to give sufficient weight to the breadth of the constitutional challenge and the comprehensive and systemic nature of the plaintiffs’ theory.”

The Attorney General of Canada appealed Justice Saunders’ decision to the Supreme Court of Canada.

Writing on behalf of the majority, Supreme Court Justice Cromwell said that the considerations for granting legal standing should be applied in a “liberal and generous manner” and that in his view “the Society and Ms. Kiselbach should be granted public interest standing.” Cromwell observed that while neither of the plaintiffs have been charged under the prostitution laws, the situation “should be considered in the light of practical realities, which are such that it is very unlikely that persons charged under the prostitution provisions would bring a claim similar to the respondents.”

Justice Cromwell added that the ongoing court battle between the Attorney General of Canada and the Ontario Courts over Canada’s prostitution laws is not sufficient reason to deny Kiselbach and SWUAV legal standing.

In September, 2010, Ontario Superior Court Justice Susan Himel had ruled that Canada’s provisions on prostitution violated women’s Charter rights to freedom of expression and security of the person. Himel ruled that prostitutes should be allowed to freely communicate with customers on the street, conduct their business in their homes or brothels, and hire accountants, drivers and bodyguards, without fear of criminal prosecution.

Federal Justice Minister Rob Nicholson told the House of Commons the day after Himel’s ruling that the federal government would appeal the decision.

In March, the Ontario Court of Appeal ruled as unconstitutional two provisions of the anti-prostitution law that prohibit brothels and living from the avails of prostitution.

The federal government announced in April it would appeal that decision.

The Supreme Court has not yet indicated whether it will hear the appeal.

“The existence of parallel litigation is certainly a highly relevant consideration that will often support denying standing. However, I agree with the chambers judge that the existence of a civil case in another province ― even one that raises many of the same issues ― is not necessarily a sufficient basis for denying standing,” Cromwell said.

“The record supports the respondents’ position that they have the capacity to undertake this litigation. Granting standing will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but it will also promote the economical use of scarce judicial resources,” Justice Cromwell concluded.

The full text of the Supreme Court of Canada ruling in Canada (Attorney General) v. Downtown Eastside Sex Workers is available here.

To contact the Minister of Justice and Attorney General of Canada
The Honourable Robert Douglas Nicholson
284 Wellington Street
Ottawa, Ontario K1A 0H8
E-mail: [email protected]
Phone: (613) 957-4222


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