BC Charter case tobe heard in supreme court!!

[susi]

The Supreme Court of Canada announced this morning that it will hear Sheri Kiselbach and SWUAV's appeal to be granted public interest standing in their constitutional challenge of Canada's prostitution laws. (Legal counsel for the plaintiffs is the Pivot Legal Society in Vancouver.)
Joyce

http://scc.lexum.org/en/news_release/2011/11-03-28.2a/11-03-28.2a.html


33981
Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, Sheryl Kiselbach

(B.C.) (Civil) (By Leave)


Charter of Rights – Civil Proceedings – Parties – Standing – Test for public interest standing– Parameters for granting public interest standing – Assessing whether there is another reasonable and effective way to bring constitutional issues before courts for the purposes of determining whether to grant public interest standing – Circumstances in which public interest litigants can bring challenges to government legislation or action – Relevance of the nature of the constitutional challenge to the assessment of whether there are other reasonable means by which a challenge may be brought – Whether Court of Appeal has weakened test for public interest standing by adopting a relaxed approach that will be an ineffective limit on when standing should be granted.



The respondents commenced an action challenging the constitutional validity of Criminal Code sections 210 (keeping and being within a common bawdy house), 211 (transporting a person to a common bawdy house), 212 (procuring and living on the avails of prostitution) except for ss. 212(1)(g) and (i), and 213 (soliciting in a public place) on the basis these provisions infringe ss. 2(b), 2(d), 7 and 15 of the Charter of Rights and Freedoms. Neither respondent is currently charged with any of these offences. The applicant brought an application in part seeking to have the action dismissed for lack of standing.




December 15, 2008

Supreme Court of British Columbia

(Ehrcke J.)

2008 BCSC 1726



Claim dismissed for lack of standing



October 12, 2010

Court of Appeal for British Columbia

(Vancouver)

(Saunders, Neilson, Groberman [dissenting]

JJ.A.)

2010 BCCA 439

CA036762



Appeal granted, order dismissing action set aside, matter remitted to Supreme Court of British Columbia



December 13, 2010

Supreme Court of Canada



Application for leave to appeal filed

 

[treveller]

Post by Katrina Pacey

I have copied this post by Katrina Pacey from the Ethos Law Group web site.

SCC grants leave to appeal in SWUAV v. Canada

Posted by Katrina Pacey on 31 Mar 2011

The Supreme Court of Canada announced today that it will hear the federal government's appeal of a decision allowing sex workers to challenge Canada's criminal laws relating to adult prostitution: SWUAV & Kiselbach v. AG Canada. The issue on appeal is whether Sheryl Kiselbach, a former sex worker, and the Downtown Eastside Sex Workers United Against Violence Society (SWUAV) have the right to challenge Canada's criminal laws relating to adult prostitution.

The case began in 2007, when SWUAV, a non-profit organization composed of street-based sex workers, and Kiselbach, a former sex worker with 30 years of experience in the sex industry, filed a constitutional challenge to the criminal laws relating to adult prostitution. Before the case was able to get to trial, the federal government brought a motion to have the case struck out of court. The B.C. Supreme Court ruled that the plaintiffs did not have the legal right to initiate such a challenge and that only an individual active sex worker or a sex worker currently facing charges could bring forward such a case. In October 2010, the Court of Appeal reversed that decision, granting SWUAV and Kiselbach public interest standing.

The outcome of this case will have a very important impact on public interest advocacy in Canada and access to justice for marginalized people.

SWUAV and Ms. Kiselbach are represented by Katrina and Joseph Arvay, QC.

 

[Dave in Phoenix]

From the U.S. I an confused on your Courts.

As reported above and in the Vancouver Sun report the Court of Appeals reversed the ruling of the B.C. Supreme Court. To clarify is the Court of Appeals a Federal Court, since I thought other places it implied the Appeals Court was B.C. So you have a Court of Appeals above the B.C. Supreme Court?

If I am tracking this right I assume the B.C. Supreme Court decision was appealed (by sexworker) to the Canadian (Federal) Court of Appeals where sexwork won on the standing issue, and now the Crown is appealing to the Canadian Supreme Court.

Trying to compare this to U.S. law which is why this Yankee is confused is if it was a Charter of Rights (Part I of the Constitution Act, 1982) issue in our system the State Courts would not even have jurisdiction to hear the case since it was a Federal Constitutional issue. But seems in Canada both provincial and Federal Courts have jurisdiction?

I sort of understand the structure of Canadian "inferior" Courts, Superior etc that can appeal to the provincial Courts of Appeals and then the Canadian Supreme Court but confused about the B.C. Supreme Court tossed in the mix.

A curious confused Yankee.. who use to enjoy Victoria agencies back in the days of the Saanich agencies like Classy Ladies etc before the nice Sheriff scouted them out of town to Victoria. But more recently have spent more time in Ontario with more open strip club (B.C. AB issue unlike Ontario) and nude reverse massage options.

For reminders of the old days, see my many reports on http://sexworkvictoria.com including when I was detained by immigration at Victoria airport and had to teach them Canadian prostitution law. They admired I knew more than they did and one officer got very interested personally. They found all my Canadian sexwork stuff on my laptop. After a few hours happy ending.. well they knew all was legal after I educated them and they looked it up in Criminal Code (I even knew sections).

 

[sunnysideup]

It’s late and I’ve had a few too many shots of Irish Whiskey but I’ll try to answer your questions anyway.

In Canada, each province has a superior court - the Supreme Court of British Columbia in BC for example. This is the highest level of trial court. From that lies the provincial Court of Appeal. In British Columbia, for example, we have the Provincial Court of British Columbia (the lowest level of trial court). Then there’s the Supreme Court of British Columbia (which is a trial court for some matters and an appeal court (from the Provincial Court) in other matters. After that, there’s the British Columbia Court of Appeal (BCCA). The BCCA is not a trial court. Appeals based on transcripts of the Supreme Court of British Columbia are the only things that are heard in the BCCA.

An appeal from the BCCA lies with the Supreme Court of Canada (also an appeal court only). But an appeal to the Supreme Court of Canada does not come as a matter of right in most instances. The aggrieved party usually has to apply for leave to appeal to the Supreme Court of Canada and in many instances (if, for example, the Supreme Court of Canada doesn’t think that the subject matter of the appeal warrants it’s consideration for public policy reasons) leave to appeal may be denied. Just to get a hearing of the Supreme Court of Canada suggests that the subject matter of the appeal has pressing social issues in need of adjudication in the eyes of that court.

Since 1949, the Supreme Court of Canada is the final voice in Canada. Prior to 1949, believe it of not, there was a further avenue of appeal to the Privy Council in England.

The Judges for the Provincial Courts in each province are appointed provincially. The Justices for the provincial Supreme Courts, the provincial Courts of Appeal and the Supreme Court of Canada are appointed federally. In Canada, no judges are elected as, for example, in the states.

Does that help?

 

[nd1]

Clear as Mud, eh?

From the U.S. I an confused on your Courts.

As reported above and in the Vancouver Sun report the Court of Appeals reversed the ruling of the B.C. Supreme Court. To clarify is the Court of Appeals a Federal Court, since I thought other places it implied the Appeals Court was B.C. So you have a Court of Appeals above the B.C. Supreme Court?

The BC Court of Appeal is the highest court in the BC provincial court system. It hears appeals from both the Supreme Court of BC and its Provincial Court. Depending on the nature of the cases, the Supreme Court of BC is both a court of first instance, as well as the appellete court for the Provincial Court. In fact, unless when specifically provided for otherwise by statutes, the Supreme Court of BC has inherent jurisdiction over all cases.

Appeals from the BC Court of Appeal go to the Supreme Court of Canada, which also hears appellete cases from the federal court system, which has its own Court of Appeal and lower courts. In this particular case, the BC Court of Appeal found for the sex workers (i.e., that they do have the standing to be party to a case in the Supreme Court of BC) and the federal government appealed that decision to the Supreme Court of Canada, which has decided to hear the case.

The Supreme Court of Canada is the highest court in the land; should it decide against the sex workers, their case ends.

 

[Dave in Phoenix]

I think so...

The not trial but just based on evidence of your Appeals and Supreme Court are like ours. We just never went to England for final say (your pre 1949).

Part of the confusion is it seems your "superior" Courts are higher on the level vs we have "Superior Courts" that are not that "superior".. They are only superior to lower Justice Courts (often for civil suits under say $10,000) but our "superior" Courts are inferior (below) all the non trial appeals courts (Appellate and Supreme).

My only other confusion is you seem to have a B.C. Court of Appeals that is higher than the B.C. Supreme Court if I am reading this case correctly.

I do understand the Canadian Supreme Court of course the highest just like the U.S. Supreme Court which only takes cases it wants to take based on if its a significant unresolved issue especially if different rulings between different U.S. Courts of Appeals which are in different "districts" vs your provincial.

 

[Dave in Phoenix]

Got it,

When I started reply post, it was before ND1's reply was posted which makes it less muddy! I had only ready the Whisky nice guys reply!

 

[treveller]

More Confusion

Two more points.

It is not the issue of whether the criminal laws (against activities associated with prostitution) are a charter rights violation that is going tothe Supreme Court of Canada. It is the issue of whether or not a woman who is not currently a prostitute has standing to bring the case that will be tried. This is relevant way beyond prostitution.

Sheryl Kiselbach challenge the criminal laws and the the BC Supreme Court said she didn't have standing.

Sheryl Kiselbach appealed to the BC Court of appeal and was given standing to proceed in BC Supreme Court.

The Attorney General of Canada is appealing to the Supreme Court of Canada to have Sheryl Kiselbach's standing removed.

This is all before the prostitution issues are considered.

 

[papillion]

This is the article on the CBC webpage :

"Last fall, the B.C. Court of Appeal set aside a lower court ruling that said the sex workers did not have standing to challenge the case. The attorney general appealed to the Supreme Court, which has now decided to hear the case.

A retired B.C. prostitute and a group representing sex-trade workers on Vancouver's Downtown Eastside launched the case in 2007, arguing that Canada's prostitution law forces sex workers onto the streets, where they face an increased risk of violence"

It sounds like the recent ruling gave Sheri Kiselbach and PACE standing; and the supreme court of Canada will now hear her case

 

[Dave in Phoenix]

It is another case - the Ontario case that is heading probably heading for the Canada Supreme Court where in a great long long detailed opinion the Ontario judge ruled the prostitution laws (bawdy, public solicitation, living of avails) as unconstitutional. Crown appeals, ruling stayed till June 30th last I heard.

I have written about the Ontario case so much and how it would be helpful in the U.S, (Canadian judge totally discredited the U.S. anti sex briefs because of their agenda not facts).

The B.C. case of course as stated is only on the "standing" issue not direct challenge to the Charter/Constitution as in Ontario.

 

[susi]

yes, we won't even begin to challenge the laws here until standing is determined. for me it is about access to justice. people keep saying the decriminalization of prostitution would not help workers on the street, well here we have a group of street workers wanting to come forward and the court refusing to hear their case.

i can't believe the crown appealed the decision to allow public interest standing, i have never heard of a case which qua;lified more in the public interest. this a reflection of the conservative mandate. they do not see us as people to be protected, but as criminals to be punished and without rights.

it's just going to drag it out and waste a bunch of money.

the ontario decision has also been very useful to me in combating the myths/ lies pereptuated by the abolitionists about our lives. it is a powerful piece of legal weaponry!!
love susieXXXO

 

[Dave in Phoenix]

To me it seems totally unacceptable to allow street hookers which are clearly a public nuisance. Even not when not legal there is a public outcry. In the one country were legal in certain cities, there is a huge uproar. Only one country in the world allows it in certain cities.

If they would make incall legal (bawdy) there would be no excuse to be on the streets and a public nuisance. But there would still be many who are too stoned to work with any structure, showing up on time etc to work even if incalls legal.

Totally support getting rid of the pimps (living off avails usually goes after them not agencies who only sell time not sex).

Outcall of course always legal as in most of the world except the U.S. But street hooking clearly a worldwide nuisance. In Europe Zones failed and where ever it is legal is a huge public outcry for good reasons in my view.