Jan 15, 2014


Gastown Gazette editor alleges vendetta agenda!

Gastown Gazette editor alleges vendetta agenda!

  On New Year’s Eve a number of people called the police about a violent assault in progress, a woman screaming and fears for her life. Police reported going to the apartment identified and speaking to a distraught woman at her door, then being confronted by a man who yelled at them to leave and became physically aggressive when the cops declined.
  Lo & behold: the guy was Andy Patton, his dubious claim-to-fame highlighted in the title above. He got onto computer media and began this great campaign to soak the incident for as much publicity and angst as possible. He says he is as innocent as the driven snow; his wife is backing his story (either forced to or just ‘knowing what is good for [her]’ has not yet been determined).
  A comment attributed to his wife: “Someone with a vendetta against us is behind this!!” Does she mean (gasp) Carnegie? Are the 2 of ‘em so caught up in their own hype and stories of “investigating” Carnegie and all its nefarious minions like Jean, Wendy (even though she hasn’t worked here for over a year), Ivan, who got disgusted with their twisted lies, and even yours truly, just a mindless robot under the overwhelming force of the evil Jean/Tamara/King-Mong, that they believe it???
 We tried sitting here being smug and obscene about our total control over the Vancouver POlice Department, eating caviar purchased with all the thousands embezzled or stolen from “the poor” and even asking the director to wear the mink coat we bought her… then just broke up laughing at such an idiotic statement. See, it’s not the facts; it’s the perception of reality that has to be manipulated.. or rewritten.. or just made up out of whole cloth (lying).
  Sympathy, empathy, shared pathologies can be communicated to the Pattons through Roland Clarke at the Sunday market on Carrall. The front cover is a reflection of the community’s attitude to the interference brought to bear on the neighbourhood by Clarke and the Gastown Business Improvement Association.
  If they get their way, this market will soon be the exclusive venue for licensed businesses to get a stall and “be gritty.”

                                   By PAULR  TAYLOR


New Year’s Prayer

New Year’s Prayer

Let us be brothers now
as we wake on the morning of the 1st
let our first step be in joy
let our next step be powered by the force of love
and the next to give power and food
to the hungry and powerless
Oh Spirit this request for the universe to bless
Start with love in your heart
the Creator will do the rest
no contest, go forward now
you are blessed
you are blessed

no worse, no better than all the rest
go forward now
you are blessed
                                             Richard Loewen


you are special elfs.
  To all the Vancouver organisations & all the people who gave so much… It makes me feel special. So is everyone down here D.T.E.S.
   So my dear friends from the north pole, you are
special elfs.
  Thank you  Thank you        
                             All my relations,
                                Bonnie E Stevens
                        HAPPY NEW YEAR




 We’d like to welcome Elizabeth as our regular Monday and Sometimes-Saturday librarian.  Many of you will recognize Elizabeth from all her work this past summer, helping us with the Alley Health Fair.  
  We’ve added lots and LOTS of new books to the Carnegie library.  Here are a few that will be on display for the rest of the week.  
Myths & Legends:  An illustrated guide to their origins and meanings / by Philip Wilkinson
OK, all you library visitors who have been asking me for information on world myths and legends – this book is for you!  Not only are the tales well recounted the book includes discussions of the myth’s meaning, purpose and power; photographs and illustrations; even family trees of some main characters. The book is meant as a survey, so does not cover each culture in exhaustive detail, but nearly all regions of the world are represented.  
The Psychology Book:  Big ideas, simply explained
Do you rather dislike the series “for dummies” and “idiot’s guide” because you don’t like being called a dummy or an idiot just because a subject is new to you?  But you read those books anyway because, well, they cover the material in just the right amount of detail?  Then you’ll appreciate this new series by DK (Dorling Kindersley) publishers.  They take the “big ideas” of the subject of psychology and provide a great mix of colour charts, photos, diagrams, timelines, biographies, and key quotes to help explain the concepts in a nicely printed, substantial volume.  We have another book in the same series, The Politics Book:  Big ideas, simply explained.  
Car:  The Definitive history of the automobile
This is a beauty of a book; and if you can just manage to lift it up, you will think so too.   The main chapters are arranged by decades, but within each decade are features by themes or by manufacturer.  For example, the 1950’s has a feature called “Detroit Fins and Chrome” and the 1970’s includes “Muscle Cars.”     
The book is jammed with colour photos.  
                   All the best for 2014!

                                 Stephanie, Carnegie Librarian


The doors of opportunity

The doors of opportunity,

On the corner of Hastings and Main
The Carnegie doors are open wide,
What one finds is many an opportunity inside.

Go through the doors any given day of the year,
Something will transpire to give you great cheer.
The face of a friend you may happen to meet.
The peace of the library always will greet.

Sit there for awhile and make some great plans,
Write a poem in peace and quiet or a novel
Who’s to say, what you accomplish is up to you this day.
Draw a cartoon with something to say spiking a laugh or
great thought into those coming your way.  

Read a great book or email a friend,
Read the newspapers and catch up on the latest.
Thoughts society wants your mind to bend.
In the end what you do is up to you my friend. 

A nourishing meal to keep you happy and healthy inside.
A smile from the information desk can swell one with pride.
A new haircut, or perhaps a lecture one can abide. 
A movie to help your time go by with stride. 
A documentary to open up your eyes wide.
A class in yoga, or portraits to draw,
A game of pool or a cup of tea. 
Always something to do here that is the law.

Giving to your community is the best gift.
Doing so always gives one a great lift.
A visit in the volunteer office and you can answer your call.
Having something to give while enjoying it all.  

After your shift, a great game of chess,
Some bingo, or yoga, you decide what's best.  
Others want to organize to help those in need,
Preserving our hood from the aggressive monied greed.
So to CCAP meeting they go,
Most light in heart don’t you know,
Because power of the people they have the encourage-
ment to show.

The pianos in the Carnegie Theatre do await,
One’s pleasure to play while listeners do get.
The bands, the singing, dancing and drama all abound.
Your talents to show case your pleasure to be found..
Sharing joy and happiness and fun, YOU BET!

The poets and readers all have a chair.  
From Opera, Jazz to rock it is all there.

Just buy a membership for a buck and
All of this opportunity for pleasure is yours to enjoy.
Not a cent more does one need to employ.

Pick up your member card at the front desk with haste,
Not a moment is there to waste.  
For all this and more in the new year is in store.
Where can one find more opportunity for enjoyment
I implore?   
Carry your Carnegie Card with pride,
Opportunity for a great new year awaits inside.  
                                  Colleen Carroll


Ode to Mandela
Ode to Mandela
It’s not our fault yet here we are
Look up to the sky, all you get is a star
Growing up with that is what we all face
It’s what is our challenge –the whole human race.
The war I can see is the emotion inside
The annoyed hateful state from which we step aside
For a new generation of equality to come
A time when we can all really live as one.
Let us not forget about all that’s gone by
The butcherous murder and babies that cry
The sickness, the plague the heavens have disgraced
The suffering & wickedness inhabiting this place
Maybe one day the eternity of time will be just
But until that day comes the fight continues
        we must
                                       Darren Morgan


Older Women Who Live in Poverty – Part 1

Older Women Who Live in Poverty – Part 1

       "This is no country for old men," the Irish poet William Butler Yeats once wrote about his native Ireland. Yet Canada isn't a great country for older women either.
     This is a story about three women whose names I've changed to Wendy, Maria, and Leanna. Wendy used to do calisthenics in a swimming pool. In the community centre where I met Wendy, this program's called 'Aquafit'
     "I can't swim," this woman in her 50's said. "I've never learned how." Wendy was born in Hong Kong and came to Vancouver as a young woman. A dutiful Chinese daughter, she married in her 20's and worked in private businesses cooking and cleaning. But now she can't work anymore.
     "I've injured my back," she says, "and now I can't do any hard work at all."
     These days Wendy's living on welfare. She gets a little more than $605 a month. She worked for 22 years she says. In a year or two, she can claim Canada Pension Plan benefits. But the provincial government will take back all of the CPP benefits and continue to pay Wendy what she's subsisting on now. The CPP payout is much less than the tiny welfare benefits that are paid to Wendy every month.
    Wendy will also end up losing money if she lives beyond 64 years of age. Since she's forced to take CPP benefits now, her CPP payments will be less than what she'd get if she waited until she's 65. And those benefits won't go up to what she would have got if she'd waited until she was 65.In other words Wendy and many others on disability and welfare are forced to pay out money to the BC government. Every year millions of dollars stream out of the pockets of the poor & into the hands of the B.C. government.
     The N.D.P. government of Mike Harcourt brought in this policy in 1996 and the Christy Clark government has no intention of changing it. It favours building megaprojects over helping older poor people. "You have to consider the pressures the Harcourt government was under when it brought in these new laws," an N.D.P.'er explains. "The federal government of Jean Chretien and Paul Martin cut transfer payments to the provinces in 1995 by a whopping 40 per cent."
     The Harcourt government, he explains, was faced with massive cuts to health, education and welfare. "So they had to get revenue from somewhere."
      Maria doesn't know Wendy. Yet if they met to discuss the cut in money when you take early C.P.P. benefits, Maria might say, "I know exactly how you feel." Maria's still working in a department store but only part time. She's about 62 and had to take C.P.P. benefits at age 60. Without those C.P.P. benefits, she couldn't survive. Yet like Wendy she's lost a lot of money by taking CPP benefits before she's turned 65.
     Maria stays pencil thin and tries to look as young as she can. She's a saleswoman in an age and an industry where youth is prized and old age scorned.
     Every month or so, the store where she works announces country-wide cutbacks. "A hedge fund is running the business," one observer says. "Or its head office in the States, is using the Canadian operations to make money." Whatever the reason, Maria could be laid off tomorrow. Also Maria's housing isn't secure. She lives in an older house owned by her and her three siblings. Soon the house in Vancouver may have to be sold and Maria would have to find another place to live.
     Maria would walk away with about $175,000 which makes her richer by far than some other older women. Yet she'd have to leave Vancouver or pay out some massive rent every month. Then there's Leanna who'll I'll write about next time. But as you might have guessed by now, Wendy and Maria don't stand alone in their condition. There's tens of thousands, maybe hundreds of thousands of older women in Canada who are poor.
                                      By Dave Jaffe


"I'd like to offer gratitude

"I'd like to offer gratitude to Jessica Harmann for her
writings of "*This Is Me.*" It's the best wisdom I've
seen or heard since Janis Ian's song "At Seventeen."

                                                           Garry Gust

*Carnegie Newsletter, December 15, 2013.



I live on the 7th floor of a high rise.  Below is a
busy intersection with stop lights.

Dozens of times each day I hear from within the
beeping of a car horn.

Sometimes the beep is of a courteous sound, perhaps to make the driver of a car ahead see that the light has turned green and the lead car should
safely proceed.

At other times the beep is rudely sustained as if to
deliver punishment to the driver of the car ahead..

Sometimes, presumably,  the car in front loudly
beeps back, as if to say: “Screw you!”

How most totally are they unaware that their beepings are heard by hundreds of people at this
busy intersection corned by apartment building?

Hopelessly it seems that I might possibly be the only person in at this busy intersection who is
bothered by this audio intrusion.  I don’t know,
because I have no access to my neighbors`
thoughts on such frequent occasions.

Nor do I know their thoughts on our country’s
soldiers` involvement in the ludicrous war in

I don’t know what they think of Iraq, Iran,
Egypt, and Syria,
or the Zionist occupation of Palestine.

All I have is the corporate news channels.
This brings consternation and frustration to
my old mind, and the only small relief I find
is in Cyberspace via the almost impartial
newsers of the Huffington Post.

But, who knows how soon they will also be
“gotten too?”

Happy Ostrich New Year
                                                  Garry Gust


To the memory of Lorraine Beatriz Lamarre

To the memory of Lorraine Beatriz Lamarre
Founder of the Listening Post

At the Listening Post
Everyone liked the most
Our sweet Lorraine.

Night and day
She chased pain away
Near Hastings and Main.

Listening Post’s champion of compassion
Soldier of the invisible front
For a better tomorrow, is gone.

Today we are in sorrow
There’s no sweet Lorraine
Near Hastings and Main.

Requiem in peace dear Lorraine
We will remember you forever.

              Mila Klimova


Keep Ya Head Up

Keep Ya Head Up

Ya lotsa down in downtown eastside
when the wolves are hungry, won’t be denied
say what you want, say what you will
those end up dead were the ones standing still

See I might be street but I got Nikes on my feet
may be just another old bum but tell me sumptin
how many old joes wearin’ my kinda clothes?
-stylin in Calvin Kline.. may be dirt poor
but I'm lookin fine

Downtown Eastside, show yourself, show some pride
it all comes down you better hide
take your booty down the Eastside
Show some pride
Never been hungry, less’n too lazy to wait
maybe somedays I come too late
all the ol’ boys stare and wonder
Where this fool be Comin’ from?
fo’ sure ain’t no Downtown Eastside bum
Keep your head up, show some pride
Brother you from the Downtown Eastside



Northern Lights

Northern Lights

  I was born in North Battleford, Sask, in the Notre Dame Hospital. I grew up there and in Battleford. N Battleford is the gateway to the NWT. It goes down to 30, 40, even 50 degrees below zero.
  There are seven wonders of the world. The Northern Lights should be the eighth wonder. You can only see them in winter. You also see them in Alaska, Yukon and the NWT.  These Northern Lights are truly magnificent!
  When I lived in Battleford growing up as a little girl, my aunts and uncles built me an igloo. It was made of hard blocks of snow. I loved my igloo. I had a wonderful childhood.

                                        Marlene Wuttunee




we come full circle
the lucky few
thru the golden dawn of youth
the heat of the southern sun
all blood energy explodes into night
the blackness where we wrestle
with all our devils
and with luck and grace
we come into
the winter quiet still
stop and consider
the medicine wheel

when wise young men
pay respect
to their older selves
good morning
grand father

takes a smart man
to know when
you’ve just met
yourself coming toward you

                         Sam Smith


Ol’ Buddy, My Ass

Ol’ Buddy, My Ass

My new year’s resolution
is stop with the polyanna sympathy crap
g’head extend some mercy..  help to those in need
but when
you got a hole in your hand size of a dogturd
“ol’ buddy” got nothing but story, story
mutha if I wanted a story
I’d march down to the freakin’ library
your ol’ buddy just wrote you off
next time you pony up
with the “oh I'm so sick” shit
go choke
I'm tired of it
tired of you, your story
your cryin’ whinin’ alla time
I will get by and you – dead meat
out suckin’ wind like you always do
Now absolutely no one give a fuck ‘bout you



Eerie Eerie Eerie Massacre

Eerie Eerie Eerie Massacre

London Bridge is falling down, falling
down, we all fell off;
the sunken City of Atlantis
ocean bottom floor;
sinkholes infrequent, now in sequence
that sinking feeling;
it looks worse than it appears to be,
seems so much surreal
the way it was told sounds damaging
seized and sacked;
by a sinkhole, the entrance way to
the centre of earth;
the Earth Mama whose bread basket is
a bottomless pit;
stuff I do not think about too much
is action plan
                                  Neil Benson


To The Way

To The Way

So how can I
Lean on you
When you are away

and every spark
and every flare
Reminds me

Self named
named by my people
named by the world

Some kind of a Messiah
ever past; ever future
the sacred heart of Man

               W. Miles


Aftermath: On the Eve of Destruction One More Time

On the Eve of Destruction  One More Time

and November the eleventh is always
in my memory
in my heart

after the mud and mire
after the pain

the decorated
the honoured
the respected

Except for the Ones left over there
Johnny Brown, Sammy Greene
Joseph Bronski, Omar

and the Ones who cannot FORGET
reliving over and over the fear & unnameable tortures
coughing all day long, all night long
begging to be released.

and the Ones still stuck back there
horror always next to you in the night
ready to spring into your tent
when the Quinine fails
and little yellow ghosts come to visit and kill

The cold, a real presence, a big problem
no hand knit sweater able to keep off
the chill, the damp, the smells, the starving
rats infested with fleas

Boxes from home – mother, girlfriend, auntie
Chocolate, shortbread, tobacco
A prayer card or holy medal,
No atheists in a foxhole
The cold in the trenches, the rising damp
Chilling the very soul
South Korean heart & humidity –fungus in the feet
The same in ‘Nam and Cambodia
Depending on the season.

No cosy wood fire in the potbelly stove
or peat smoking merrily o’er the moor
No crackling blaze of kindling and
    chips of wood from the chopping block
No mulled red wine spicy and hot
    with cinnamon and cloves –
    steaming from the stein

The only alcohol medicine in the medic’s bag
anti septic
a few pills and salves to assuage the pain
Keep the gangrene at bay
Bandages and tourniquets to stop the blood spurting
    from severed limbs and shattered faces
No treatment for purpura –a slow death
    bleeding from the skin
Radiation sickness one of St Jude’s last curses
and the begging night after night for release
Twenty, thirty, forty years after the gas attack
The coughing continued – the body surviving
   long after the spirit to live had surrendered

Dolce et Decorum Est
                                            Wilhelmina Mary Miles



When I think about this entity called life all the halfmast apologies and never-ending lineups of fading memories the scenes that shall remain, strong words stay silent like extended exclusion what once was against still is or was an ‘illusion’ it has always been the same, misplaced compassion turns to anger in a sense death is a safety net for those who fear the end of life hang in there we shall all get our share, like a cracked reactor the frailty of the human soul is no stronger than the hands held close nothing more than artifacts in need of uncruel minds to boast could that be you or maybe no one really cares, how the simple and unadorned don’t realise that they’re free then again they have several things in common at most which scares me well global warming will even that one out, so many put complete trust their entire life on to this 21st century gadgetry I am part of the 3% who have not kept up with the rest of such a restless society the slash and burnminded have honestly tried to conform and discover what it’s all about, with indifference dividing people’s beliefs beginning long before you were pulled into this world you were taught to obey and fear all you hear and been said that’s every word as you look at the bulletproof clouds and tug on your keychain with lifejacket and miniature hubble telescope intact,  now just the way this horror show ends is worth the price of admission all endings left alive are my documented submission just one cracked reactor could end all that is everyone that is us would no longer feel all pain exit stage left to mankind’s final act,
I have memories of things that never happened and of people who didn’t exist if there is an extra layer of quality I lost it in the mist if there is a god did you create all just to satisfy your own needs,  we all create our own crown of thorns day by month by decade you wake up thinking by some miracle you have it made the only things being made are pinewood boxes –now trust me when I say no one’s heart will bleed like watering down the water in this high glass class of society or all the strawberry ice cream left in Neapolitan cartons the SatanGodIceCream family would love to see su explore variety but no one can even agree to not agree,
I look to my left and then to my right Project Common Sense seems to have been abandoned   it is now Project Escape well I can’t undo every single-minded mistake oh well what shall be I guess shall be yes I'm quite a loaded gun can set me or us… just this once…
I will be free!
                             By ROBERT McGILLIVRAY

We can easily forgive a child who is afraid of the dark;   the real tragedy is when men are afraid of the light.


Lie? Me??

Lie?   Me??

Tell me true
Why is the truth
so foreign to you
Sometimes seems
you forget, maybe
never learned
the truth is the truth
it don’t change
to what is expedient to say
to get yur way
simple   not much to do
make sure your words
always ring true

          René McIntosh


The Burden of Beauty

The Burden of Beauty
                        for Dale Drewey

The far ones lead us
where they will from the surface
of our souls.
from the vantage point of awe
beauty subsumes all the plains
honing to their finest point
William Blake’s arrows for him
You will know when you’ve been pierced.

                                    Stephen Belkin



Sex Workers United Against Violence& Kiselbach v. Canada

This is the 5th and final part of this article. It was sent to the Carnegie Newsletter by Katrina Pacey (I think) so we could all see the incredible maze & obstacles that governments - both provincial & federal - forced this team of dedicated people to go through. In light of Picton's horrible crimes, change had to be broad in scope and address the most basic prejudices and bigotry involved. The whole article can be obtained at this website: Ed.

Sex Workers United Against Violence
& Kiselbach v. Canada

An innovative approach to strategic litigation
on behalf of marginalised communities.

Darcie Bennet, Campaign Director, Pivot Legal Society
Jill Chettier, Coordinator, OTES SWUAV Society
DJ Joe, Director, OTES SWUAV Society
Lisa Kerr, Doctoral candidate, NYU School of Law
Sheryl Kiselbach, Violence Prevention Coordinator, PACE
Katrina Pacey, Litigation Director, Pivot Legal Society
Elin Sigurdson, lawyer, J.FK. Law Corporation

The BC Supreme Court

In October 2008, Justice Ehrcke of the BC Supreme Court heard the government’s motion. In advance of the hearing, both parties filed affidavit evidence in support of their positions. The government’s evidence was aimed at proving four main points regarding other ways the SWUAV/Kiselbach claim could be brought. First, the government argued that a constitutional challenge of this sort could be brought in the context of a criminal trial. The government pointed to cases where accused persons, faced with criminal charges for prostitution-related offences, brought constitutional challenges to various sections of the Criminal Code.
Second, the government pointed to the case Bedford v. Canada1, which was underway in Ontario. This litigation was highlighted for two reasons: first, the Bedford case raised some of the same legal issues as the SWUAV/Kiselbach litigation, and second, an active sex worker had come forward as a plaintiff in that case. The government argued that the Bedford case demonstrated that an active sex worker could, in fact, come forward and initiate this type of constitutional claim, indicating the legislation would not be immune from challenge. Further, the government argued that an affidavit from a British Columbia sex worker had been filed in the Bedford case, and that this was proof that an active sex worker could be expected to come forward and engage openly in litigation of this sort. Finally, the government argued that public interest standing has been denied in a range of prior cases where the plaintiffs faced difficult circumstances, and that the Court should do so in the SWUAV and Kiselbach as well.
  In response to the government’s motion, counsel for SWUAV and Kiselbach filed evidence that there was no other reasonable and effective way for this claim to be brought by a directly affected sex worker. Their evidence included the 94 affidavits from street-based sex workers in the Downtown Eastside, collected for the Voices for Dignity report, outlining the very difficult circumstances of their lives and their desire for decriminalization of their work. These affidavits, along with an accompanying paper previously written by Pivot about barriers to political participation faced by sex workers, illustrated the real and insurmountable barriers that prevent sex workers from being able to advance legal claims.
Counsel for SWUAV/Kiselbach also refuted the government’s argument that this claim could be dealt with through a criminal proceeding. Criminal proceedings do not provide an opportunity to simultaneously challenge all of the provisions of the Criminal Code that relate to adult sex work, because the accused only has standing to challenge those sections under which they are charged. There had never been a case where most or all of the provisions of the Criminal Code that relate to adult sex work were at issue in a criminal trial. In the SWUAV/Kiselbach claim, the key issues was the intersecting effect of the provisions, alleging that the several laws individually and collectively violate sex workers’ constitutional rights.
  Counsel for SWUAV/Kiselbach also argued that the Ontario litigation should not be a bar to granting public interest standing to the plaintiffs. First, the Ontario litigation was taking place in another province, and decisions by the courts in that province would not be binding in British Columbia. Second, the Bedford litigation did not challenge all of the laws at issue in the SWUAV/Kiselbach claim, nor did it raise the same constitutional questions.2 Finally, counsel argued that the plaintiffs in this case brought a unique experience and perspective to this litigation, given their involvement in street-based sex work and the range of oppressions that impact their lives, which would not be represented by the differently-situated plaintiffs in the Ontario litigation.
  With regards to the particular circumstances of Ms. Kiselbach, counsel provided evidence about her past experience as a sex worker. In response to the government’s claim that Kiselbach should have brought her Charter challenge when she was criminally charged, counsel pointed to the many reasons she was unable to do so at that time. The loss of privacy and her need to return to sex work as quickly as possible in order to maintain her income were her most pressing concerns and precluded her from being able to bring a challenge to the laws that harmed her. Kiselbach’s evidence was clear that, at the time that she was facing criminal charges, she had to use whatever means to quickly resolve her legal issues because of the negative impact they were having on her life. Protracted Charter litigation was not a reasonable or plausible option while she was actively involved in the sex trade. Indeed, Kiselbach’s evidence made clear that the government’s claim about the potential for sex workers to bring a constitutional challenge in the course of a criminal prosecution were so unrealistic as to be rhetorical.  Nor would it necessarily be “effective”, given the prosecution’s power to stay a proceeding and make a piece of constitutional litigation disappear.
 In December 2008, Justice Ehrcke rendered his decision, finding that neither plaintiff had standing to challenge the laws. 3 He largely accepted the government’s submissions, dismissing SWUAV and Kiselbach’s constitutional claim. The decision was devastating to the plaintiffs, who had fought hard for their day in court. These plaintiffs felt their expertise and experiences were erased by a system that failed to understand the reality of their lives and that denied their access to the court.

The BC Court of Appeal

  The following year, the plaintiffs successfully appealed the decision. The majority of the B.C. Court of Appeal found that SWUAV and Kiselbach were entitled to public interest standing given the systemic and broad nature of their claim. The majority accepted that the claim could not be brought forward in any other reasonable and effective way. Writing for the majority, Madame Justice Saunders held:
  In this case I respectfully conclude the judge failed to give sufficient weight to the breadth of the constitutional challenge and the comprehensive and systemic nature of the plaintiffs’ theory. The balance struck by the jurisprudence is between judicial economy and openness to court review of seriously challenged legislation. In my respectful view, the third criterion, considering the claim in total, is met and the balance tips toward access to court review of the impugned legislation.4
 The government responded by appealing the decision to Canada’s highest court, which would have the final word regarding the fate of this litigation & the scope of the law of standing in Canada.

The Supreme Court of Canada

  In January 2012, the plaintiffs and their legal team boarded a plane to Ottawa to oppose the government’s appeal. Nine justices of the Supreme Court of Canada (SCC) would decide the fate of SWUAV and Kiselbach’s challenge to the prostitution laws. Unlike the courts below, the SCC would also have the opportunity to revisit the test for public interest standing that was established by the 1992 Council of Churches decision & decide whether the test should be amended in some way.
 In their submissions, the government made the same points argued in the courts below, and argued SWUAV and Kiselbach could not meet the current test for public interest standing. Counsel for the plaintiffs, with the support of a range of intervenor organizations supporting a better test for public interest standing, made two arguments. First, under the test for public interest standing as established by the Council of Churches decision, SWUAV and Kiselbach argued they should be granted public interest standing given that there is no other reasonable and effective way for their claim to make its way before the courts. In addition, they raised a further argument, stating that the SCC should revise the test for public interest standing so as to accord with principles of access to justice.
  After a five-year battle over standing, it was clear to the plaintiffs and their counsel that the law regarding public interest standing was creating substantial barriers for public interest litigants with important and viable legal claims. The old test suggested that if there is an option whereby a private interest litigant may (hypothetically) come forward, that option should be preferred and public interest standing should be refused. The old test empowered government to regularly bring motions to strike in an attempt to thwart public interest litigation. Further, a formulaic and rigid application of the test did not allow for recognition of the efficacy and efficiency that is possible when plaintiffs such as SWUAV & Kiselbach are permitted to litigate systemic Charter claims
  Counsel for SWUAV and Kiselbach therefore suggested revising the language of the third branch of the existing test, which asked “whether there is another reasonable and effective way to bring the issue before the court.” The plaintiffs suggested that the third branch of the test should, instead, ask whether the public interest litigant presents a reasonable and effective way of bringing the issues to court. Counsel argued that it should not matter whether there is another reasonable and effective way for the issues to be litigated (such as by a litigant with private interest standing), but the court should instead focus on the appropriateness of the plaintiff(s) that are currently before the court. Further, when applying this reformulated test, counsel for SWUAV and Kiselbach argued that the Court should consider a range of factors, including:
-whether the case is public interest litigation;
-whether the plaintiff is a “public interest litigant” or at least represents a significant sector of the public alleged to be affected by the impugned laws;
-whether the plaintiff represents a vulnerable group in economic, emotional or social terms;
-whether the impugned laws may detract from the ability of affected individuals to mount and sustain an individual legal challenge;
-whether the litigation raises issues that are likely to deter individuals from advancing them, such as issues of an intimate, private, or stigmatized nature;  and
whether the litigation is systemic &/or raises a comprehensive challenge to legislation or state action.
The plaintiffs argued that this reformulated test would provide better guidance to trial courts, which would endeavour to ensure that only reasonable and effective litigation moves forward, as is their role.  This reformulation would remove the arbitrary preference for individual litigation in cases of broad systemic impact.

  Nine months later, a large crowd of sex workers, lawyers, allies and media gathered at the Pivot office in Vancouver to receive the judgment. Tears and hugs flooded the room when one of the lawyers exclaimed, “appeal denied” and the crowd realized that SWUAV and Kiselbach had succeeded in their five-year-long fight for access to justice. Elation grew when the plaintiffs realized that not only had they been granted public interest standing, but that the Court had agreed with the reformulation of the test. The law of standing would no longer present the same barrier between marginalized litigants and their ability to bring public interest claims forward.

Implications for Marginalized Litigants

  SWUAV and Kiselbach’s courageous fight for sex workers’ rights has had a number of important social justice implications, and has made a substantial contribution to the sex workers’ rights movement. Their work has amplified the voices of a community of women who are otherwise silenced and ignored. They have informed the national debate surrounding sex work and law reform, by bringing forth the voices of some of the most marginalized and criminalized women in the country. They have also developed an innovative model for engaging marginalized women in social activism and public interest litigation, which can serve as a model for other communities.  At all times, sex workers’ empowerment, safety and dignity has been the guiding principle for the organization, resulting in an effective approach to social activism with the aim of being meaningfully representative of the people most affected by the targeted laws.
  Although not originally intended to be a test case about the law of standing, the SWUAV and Kiselbach litigation has emerged as an important victory in the quest for access to justice. The Supreme Court of Canada’s decision resulted in a significant and necessary shift in the test for public interest standing, which will benefit other marginalized litigants. Prior to this decision, marginalized people who wished to initiate Charter claims were faced with few options other than personally assuming the extraordinary demands and risks of litigation. The final decision in the SWUAV/Kiselbach case has opened up novel ways in which marginalized litigants can come forward, without forcing such litigants to individually take on undue risks and burdens. It is now increasingly possible to litigate collectively with other directly impacted persons, in support of one another and with sufficient individual protections. It is now possible to initiate litigation as a person formerly affected by laws, at a time when that person is in a sufficiently supported and stable position to take on a legal challenge. These changes address some important access to justice barriers that have blocked litigation of important constitutional claims in Canadian history. The state of constitutional law and practice will benefit from these changes, as will our communities.

SWUAV and Kiselbach have put their case on hold pending a decision from the Supreme Court of Canada in the Bedford litigation, which will decide many of the constitutional issues raised by SWUAV/Kiselbach. SWUAV and Kiselbach are prepared to proceed to trial if the Supreme Court of Canada upholds s 213 which prohibits communication in public for the purpose of engaging in prostitution; s 210 which prohibits being found in, occupying, or keeping a common bawdy house; or s 212(1)(j) which prohibits living on the avails of adult prostitution.
  The SWUAV and Kiselbach case shifted the legal landscape and public consciousness of two of Canada’s most pressing human rights issues: sex workers’ rights and access to justice. The case provides both inspiration and precedent for law reform movements across the world attempting to extend the boundaries of human rights protection.

[The Supreme Court of Canada gave the Government of Canada 1 year to rectify the situation. The success of this litigation makes current laws, specifically s 213, s 210 and s 212(1)(i), unconstitutional. In this time period said government will rewrite and table legislation.
  If the foregoing isn’t correct in a legal sense, i.e. if the government can introduce new legislation which is purposefully anathema to the outcome of Kiselbach v Canada, I ask for commentary.    Ed.]


January 15, 2014 (copy)

January 15, 2014

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