Darcie Bennett

SWUAV Decision major victory for access to justice

Supreme Court decision in SWUAV – the short version

Canada's highest court has unanimously ruled that a former sex worker and an organization run by and for street-based sex workers should be granted public interest standing to challenge the laws related to adult prostitution.

This case began back in 2007, when a group run by and for street-based sex workers in Vancouver's Downtown Eastside, determined to address the intense violence and marginalization in their community, decided to join together as a non-profit society and take on these issues. Sex Workers United Against Violence (SWUAV) eventually decided to take on the laws that criminalize to adult prostitution. They were joined by Sheryl Kiselbach, a former sex worker with 30 years experience who now works with street-based sex workers in mounting this challenge.

They filed a constitutional challenge to the laws, but before the case could go to trial, the Federal Government asked the court to find that Sheri Kiselbach and SWUAV did not have the right to challenge the laws, because neither Sheri nor the organization as an entity were at risk of being charged under the laws in question. The BC Supreme Court agreed with the government, but on appeal, the BC Court of Appeal reversed the decision. The Federal Government appealed that decision to the Supreme Court of Canada. Back in January, Sherri and DJ, a long serving SWUAV board member, joined the legal team in traveling to Ottawa to argue their case.

At issue in this case was the law of standing, particularly the question of under what circumstances the court can grant "public interest standing." The Court writes:

[3] The appeal raises one main question: whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing. In my view, the latter approach is the right one. Applying it here, my view is that the Society and Ms. Kiselbach should be granted public interest standing. I would therefore dismiss the appeal.

It's a long decision (you can read the entire judgement here), but here is a quick summary of the decision and its implications for our clients and for access to justice for marginalized people across Canada.

The decision suggests a deep understanding of the intense vulnerability that litigants face in bringing forward Charter claims. The chambers judge who originally heard the case in BC Supreme Court wrote that he could not understand how the vulnerability of the Society's constituency made it impossible for them to come forward as plaintiffs, given that they were prepared to testify as witnesses.

However, the Supreme Court of Canada wrote:

[76] … being a witness and a party are two very different things. In this case, the record shows that there were no sex workers in the Downtown Eastside neighbourhood of Vancouver willing to bring a comprehensive challenge forward. They feared loss of privacy and safety and increased violence by clients. Also, their spouses, friends, family members and/or members of their community may not know that they are or were involved in sex work or that they are or were drug users. They have children that they fear will be removed by child protection authorities. Finally, bringing such challenge, they fear, may limit their current or future education or employment opportunities (Affidavit of Jill Chettiar, September 26, 2008, at paras. 16-18 (A.R., vol. IV, at pp. 184-85)). As I see it, the willingness of many of these same persons to swear affidavits or to appear to testify does not undercut their evidence to the effect that they would not be willing or able to bring a challenge of this nature in their own names. There are also the practical aspects of running a major constitutional law suit. Counsel needs to be able to communicate with his or her clients and the clients must be able to provide timely and appropriate instructions. Many difficulties might arise in the context of individual challenges given the evidence about the circumstances of many of the individuals most directly affected by the challenged provisions.

The Court also found that, as a collective working with Pivot, our clients have the capacity to bring forward this litigation:

[74] The record supports the respondents' position that they have the capacity to undertake this litigation. The Society is a well-organized association with considerable expertise with respect to sex workers in the Downtown Eastside, and Ms. Kiselbach, a former sex worker in this neighbourhood, is supported by the resources of the Society. They provide a concrete factual background and represent those most directly affected by the legislation. For instance, the respondents' evidence includes affidavits from more than 90 current or past sex workers from the Downtown Eastside neighbourhood of Vancouver (R.F., at para. 20). Further, the Society is represented by experienced human rights lawyers, as well as by the Pivot Legal Society, a non-profit legal advocacy group working in Vancouver's Downtown Eastside and focusing predominantly on the legal issues that affect this community.

One issue raised by the Federal Government was another challenge in Ontario that is currently making its way up to the SCC. However, of particular importance to the court was the unique perspective that this particular group of plaintiffs brings to this issue:

[64] A further point is that, as discussed earlier, the court must examine not only the precise legal issue, but the perspective from which it is raised. The perspectives from which the challenges in Bedford and in this case come are very different. The claimants in Bedford were not primarily involved in street-level sex work, whereas the main focus in this case is on those individuals. As the claim of unconstitutionality of the prostitution laws revolves mainly around the effects it has on street-level sex workers, the respondents in this action ground their challenges in a distinctive context. Finally, there may be other litigation management strategies, short of the blunt instrument of a denial of standing, to ensure the efficient and effective use of judicial resources.

The implications of this decision are that the SWUAV/Kiselbach case will be able proceed. On a broader level, access to justice and to Charter protection has been improved for marginalized people who want to bring human rights claims before the courts:

[51] Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected.

Today, we'll be diving into the decision more deeply and working with our clients to develop our strategy to proceed with this fight they began so many years ago.