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Advocates push to have DTES sex worker voices heard in top court's ruling

Three local groups advocating for the rights of sex workers want to bring the voices of Downtown Eastside workers to the highest court of Canada in an upcoming case ruling on the constitutionality of Canada's prostitution laws.

Sex Workers United Against Violence Society (SWUAV), PACE Society (PACE) and Pivot Legal Society have filed a leave to intervene in the case of Attorney General of Canada, et al. v. Terri Jean Bedford, et al. The hearing at the Supreme Court of Canada is scheduled for June 12.

The groups argue that striking down some of the country's prostitution laws would allow sex workers to take safety measures that are currently prohibited in the Criminal Code of Canada.

The case started around 2009 when three current and former sex trade workers from Ontario, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, challenged the constitutionality of certain portions of the Criminal Code that pertain to prostitution. They argued that sections of the code that prohibit the operation of bawdy houses, communication between a prostitute and client in a public place, and living wholly or in part off the earnings of a prostitute are unconstitutional because they interfere with sex worker rights to safety and security under the Charter of Rights and Freedoms.

The initial trial took place in the Ontario Superior Court of Justice. Justice Susan Himel issued her decision on Sept. 28, 2010, striking down all three laws. The case then moved to the Ontario Court of Appeal. That court struck down the living off avails and the bawdy house prohibitions, but upheld the communication law.

Now that the case has moved to the Supreme Court of Canada, the ruling will be national and the outcome will take effect across the country.

Lawyer Kat Kinch, who is representing PACE, SWUAV and Pivot, said that the three advocacy groups filing for intervention in the upcoming case represent the unique perspective of street level sex workers that is not fully represented by the Bedford plaintiffs. Bedford, Lebovitch and Scott all come from the sex trade, but work indoors and do not represent the street-level survival sex work environment like most Downtown Eastside workers, she said.

Because the advocacy groups were not involved in the original case in Ontario, they must file a leave of intervention. This means they have a vested interest in the outcome of the case and think they should take part in the hearing, Kinch told The Tyee. She said it is common for interest groups to intervene in hearings that relate to Charter.

Kinch explained that the Bedford case is challenging three particular laws, which the plaintiffs argue violate section 7 of the Charter that guarantee the right to "life, liberty and security of the person."

The "bawdy house" law, section 210 in the Criminal Code, prevents any landowner, property manager or tenant to allow their property to be used as a place of prostitution.

The "living on the avails" portion of the procuring law, section 212, prevents anyone from living partly or wholly on income of a sex worker. It is meant to target pimps that take portions of a sex worker's earnings.

The "communication law," section 213, prevents a sex worker and client from talking openly in public about the exchange of money for sex. This means that street-level workers must use oblique terms when discussing what they charge, the services they're offering, what they are comfortable doing and where they are comfortable being taken.

In a press conference at Pivot Legal Society yesterday, the advocates emphasized that the striking down of these laws would allow sex workers to take certain safety measures.

"Criminalizing sex workers just pushes them further and further into the margins of society," said Sheryl Kiselbach, violence prevention coordinator at PACE.

Kiselbach said that the communication law can lead to miscommunication between sex workers and their clients, which can end in violence. It forces street-level sex workers out of more public places and into darkly lit areas where they are less visible and more vulnerable.

One of the main arguments put forward by the groups is that sex workers are unable to seek justice if attacked or assaulted. Since they are engaging in a criminal act themselves, if they are sexually assaulted they may not report it in fear they will be charged for a crime themselves, discriminated against or harassed by officers.

"Women need to remember that if sex workers can't report predators to the police, predators don't always just stick to sex workers. That places all women at risk if these guys aren't caught," said Kerry Porth, board chair of Pivot Legal Society.

Both Porth and Kiselbach pointed to New Zealand's 2003 decriminalization of sex work as an example of a system where sex workers are able to rely on the law to ensure the safety of their working conditions.

"One of the loveliest things I ever read was a New Zealand government report on the impact of decriminalization," said Porth. "They did an interview with a sex worker who said that now if something goes wrong with a client she can call the police and the police will come and take him away, not her away, and that's the major difference."

Other advocates believe that prostitution always hurts women and striking down these laws won't keep women out of danger.

"Eliminating these laws will not eliminate the violence that us women face, because it is not the laws that beat, rape, torture and harass us; it is the buyers, the johns, the pimps, the bawdy house owners, the men who inflict violence onto our bodies. How will changing the laws ensure that violence will not happen?" Samantha Grey, a member of the Aboriginal Women's Action Network (AWAN) told The Tyee via email.

"Temporary harm reduction measures for women are already in place and have ultimately resulted in more violence, more silence and more missing women. Sisterwatch, for example, is a (Vancouver Police Department) run initiative to help stop violence against women on the Downtown Eastside. Since its creation, has the violence dissipated? No. Women are still going missing, being thrown out of hotel windows and the streets largely remain unsafe for women," she added.

Carly Rhianna Smith is completing a practicum at The Tyee.

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