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Legal groups defend right to challenge prostitution laws

VANCOUVER - An alliance of sex workers has gained some new allies in its legal battle to have Canada's prostitution laws struck down.

The B.C. Court of Appeal has granted permission for three legal organizations to intervene in the appeal of a decision which prevented Sex Workers United Against Violence (SWUAV) from challenging alleged infringements of the constitutional rights of its members.

SWUAV is a registered society whose members are involved in street prostitution in Vancouver's Downtown Eastside.

In 2007, SWUAV -- with the support of the Pivot Legal Society -- launched a legal challenge seeking to have many of the laws against prostitution declared unconstitutional.

The challenge was based, in part, on the argument that the laws infringe sex workers' Charter rights to free association and security of the person by preventing them from supporting each other and forcing them to work in a dangerous environment.

The three legal organizations are disputing a B.C. Supreme Court decision that barred SWUAV from challenging the law.

Last December, a Supreme Court judge ruled that, since individual sex workers could challenge the law when they are charged with an offence, there was no need for the society to challenge it in the public interest.

A former sex worker, Sheryl Kiselbach, was also denied the right to challenge the law on the basis that she is currently not directly affected by the laws against prostitution.

The B.C. Civil Liberties Association is one of the three intervenors. The organization advocates for the decriminalization of prostitution, and would have applied to intervene in the original challenge, explained BCCLA counsel, Megan Vis-Dunbar. However, the appeal relates to other aspects of the organization's work.

“Our concern with this appeal is both because of that interest in sex laws and because of our interest in courts being accessible,” Vis-Dunbar said.

The two other intervening organizations -- the West Coast Legal Education and Action Fund (West Coast LEAF) and the Trial Lawyers Association of B.C. -- are not supporting the constitutional challenge of the prostitution laws, but are involved in the appeal because of the larger issue of access to justice.

“We want to ensure that the court does not exclude a group like this -- marginalized women who have joined together,” said Kasari Govender, Legal Director at West Coast LEAF.

Because women involved in prostitution are particularly vulnerable and have limited resources, she argued, they cannot launch a challenge on their own.

Courts in Canada recognize the right of a person or organization to launch a legal case in the public interest, but this right is limited. One restriction is that public interest standing will not be granted if there is another “reasonable and effective” way for the same issue to be raised in court.

The trial judge's ruling that an individual sex worker could reasonably be expected to challenge the laws is a “narrow interpretation” of the standard, said Megan Ellis of the Trial Lawyer's Association.

“How realistic is it to think that the sort of woman who is going to be charged with prostitution... is going to be able to launch a complicated legal challenge?” she asked.

The right to public interest standing is “a live issue in Canada,” in Ellis' opinion, with courts across the country having to determine whether a person has a right to challenge a law or action of government.

Just last week, the New Brunswick Court of Appeal upheld the right of abortion activist and doctor Henry Morgentaler to challenge that province's rules against funding abortion services. In doing so, the court ruled against a government argument that the challenge should have been made by one of Morgentaler's clients.

The appeal of the B.C. Case will be heard in November. If the appeal is successful, then SWUAV and Kiselbach will be able to proceed with the constitutional challenge against Canada's prostitution laws.

Amelia Bellamy-Royds reports for The Tyee.

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