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Former sex-trade worker takes on Canada’s sex laws

VANCOUVER – from – A retired prostitute launched an appeal of a B.C. Supreme Court decision that denied her constitutional challenge because she is not active in the sex trade and no active worker would join her.

Judge William Ehrcke ruled in December 2008 that plaintiff Sheri Kiselbach [pictured left] had no direct standing to launch a challenge to existing prostitution laws because she isn’t facing criminal charges and her past convictions are not relevant.

“I feel I have the right, even though I’m out of sex work, to be an expert on this issue,” Kiselbach said Thursday outside the B.C. Court of Appeal.

“My experiences in sex work are still as valid today as they are for other sex workers who are working right now.”

Kiselbach’s attorney Katrina Pacey with Pivot Legal LLP argues it’s unreasonable to ask active sex workers to come forward because the sex industry is relatively underground and criminalized.

“Today what the court is going to hear is why various sex workers cannot come forward as individuals and why the representatives before the court are really appropriate for representing sex workers interests and their goals,” Pacey said.

“What the case is actually about in the long-term is the way that criminal laws that relate to adult prostitution violate the safety, and the liberty and the equality of sex trade workers.”

The B.C. Court of Appeal will hear from Kiselbach Thursday and Friday.

It could be months before the appeals court makes a ruling.

Back story, May 28, 2009: A former long-time prostitute in Vancouver says she should be able to challenge Canada’s prostitution laws on her own, and the court’s requirement that her case be bolstered by women now in the sex trade isn’t fair.

Sheri Kiselbach, 58, worked in the sex trade for three decades and says she was frequently forced to compromise her safety because of Canada’s legal restrictions.

But a judge has said those laws don’t affect her now, since she’s no longer a prostitute and isn’t facing charges. The B.C. Supreme Court judge concluded only a prostitute currently facing charges can launch the constitutional argument.

Kiselbach disagrees and her lawyers were at the B.C. Court of Appeal on Thursday gathering allies to make that case.

Katrina Pacey of Pivot Legal Society, which is heading the case, says it’s unfair to require working prostitutes to take on such a complex legal issue.

‘I kept all the violence that I experienced hidden. I didn’t feel safe to go to the police and talk to them about it.’ —Sheri Kiselbach

“We say that [Kiselbach’s] 30 years of experience in sex work should qualify you for a challenge to laws that criminalized you for 30 years,” Pacey said outside the court.

“You have sex workers who are subject to criminal laws, are seriously marginalized, suffer incredible discrimination and stereotyping. For them to come forward and participate in a major legal proceeding is very difficult.”

On Thursday, three groups that support the appeal — the B.C. Civil Liberties Association, the Trial Lawyers Association of B.C. and the West Coast Legal Education and Action Fund — were granted intervener status in the appeal, to be heard in November.

If successful, the original challenge could head back to B.C. Supreme Court. If not, Pacey said, the next step would be to appeal to the Supreme Court of Canada.
Laws don’t protect

Kiselbach now works with a prostitution advocacy and support group in Vancouver’s Downtown Eastside.

She said prostitution laws forced her into unsafe situations that ended with her being assaulted and raped, making it difficult for her to go to police when she was victimized.

“I kept all the violence that I experienced hidden. I didn’t feel safe to go to the police and talk to them about it,” said Kiselbach.

“I don’t think I was allowed to work safely. I had to always watch where I was. I couldn’t just go into my apartment and do it there, feeling that I was safer there, when in fact it was against the law to do so.”

And, she said, when she did come forward, she was regarded as a criminal and her complaints weren’t taken seriously.

The ruling that said Kiselbach couldn’t launch the constitutional challenge came down last December after the federal government argued she didn’t have the right to participate in such a case.

Judge William Ehrcke said Kiselbach didn’t have direct standing because she isn’t facing criminal charges.

Kiselbach’s past prostitution-related convictions are irrelevant now, he said, because she could have appealed them at the time but didn’t.

The judge also said Kiselbach and Downtown Eastside Sex Workers United Against Violence didn’t qualify for public-interest standing, which allows people or groups who aren’t facing a legal case to still challenge the constitutionality of laws.

He said there are cases before B.C. courts and elsewhere of sex workers facing criminal charges, and any of them could challenge the constitutionality of the laws.

Ehrcke also noted there are legal challenges before other courts addressing the same issue, notably one in Ontario that involves at least one woman facing prostitution-related charges.


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