It’s unlikely that last month’s decision by the Supreme Court of Canada in the Bedford case will be the final one on sex-trade regulation. With the SCC unanimously upholding lower court rulings, the federal government has 11 months to act before the three sections of the Criminal Code prohibiting brothels, living on the avails of prostitution and communicating in public for the purposes of prostitution are struck down.
“An analogy could be drawn to a law preventing a cyclist from wearing a helmet,” Chief Justice Beverley McLachlan wrote on behalf of the SCC. “That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”
Since prostitution is a legal activity, the SCC confirmed that laws preventing sex-trade workers from working indoors, screening clients or hiring bodyguards exposes them to danger and denies them the life, liberty and security guaranteed under Section 7 of the Charter of Rights and Freedoms.
The incongruity can be traced back to 1985 when Parliament declined to make prostitution illegal but passed a law prohibiting communication for the purpose. Describing the situation in a 1990 reference case testing the constitutionality of the prohibition, former SCC Chief Justice Dickson hit the nail on the head.
“We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself,” he wrote, leaving the legislative framework intact.
If it weren’t for Robert Pickton, Parliament might have ignored the entire messy business for another 30 years.
The sex trade isn’t on most Canadians’ radars unless it hits the evening news. According to Angus Reid polls conducted annually from 2009 to 2011, just 22 – 23 percent of us are aware of the legalities surrounding prostitution.
But Pickton—arrested in 2002 and eventually charged with murdering 27 women, many of them sex workers from Vancouver’s Lower East Side—caught our attention.
As word spread that law-enforcement officials ignored early reports of missing women later shown to be Pickton’s victims, it also became clear that prostitution-related laws played a part in the horror he inflicted.
In 2003, Paul Martin’s minority Liberal government struck a committee to review prostitution laws. A pair of prorogations and a couple of elections later, the committee tabled its report in December 2006 recommending a targeted approach to prostitution-related instances of exploitation and nuisance through other existing provisions in the Criminal Code and removal of those that criminalized the exchange of sex for money.
“Members from the Liberal, New Democratic and Bloc Québécois parties are of the view that sexual activities between consenting adults that do not harm others, whether or not payment is involved, should not be prohibited by the state,” the report states.
The two Conservative MPs on the committee did not agree with the majority opposition members and neither did the government—by now a Conservative one led by Stephen Harper.
During the Pickton trial, the Prime Minister made it clear he had no interest in discussing decriminalization of sex work, reiterating his position when Ontario’s top court first struck down the prostitution laws in 2010.
“We believe that the prostitution trade is bad for society,” Harper has said. And the vow contained in last October’s throne speech, “Our Government will vigorously defend the constitutionality of Canada’s prostitution laws,” suggests his views haven’t changed.
Justice Minister Peter MacKay told CTV’s Don Newman in an interview earlier this month that the government will introduce new legislation and while Montréal’s LaPresse suggested he was looking at the Nordic model, his press secretary says that the minister expressed no such inclination. November’s Conservative Party policy convention in Calgary did adopt a resolution that the government “develop a Canada-specific plan to target the purchasers of sex and human-trafficking markets through criminalizing the purchase of sex as well as any third party attempting to profit from the purchase of sex.”
The opposition parties appear to be distancing themselves from their earlier calls for decriminalization with official Opposition Leader Tom Mulcair telling reporters that the issue is complex and needs study by a parliamentary committee while his Justice critic Françoise Boivin issued a statement calling upon the Conservatives to work with the NDP “on important related issues, such as income support, education and training, poverty alleviation, housing and treatment for addictions.”
Meanwhile Liberals in British Columbia who submitted a resolution to their party’s convention being held in Montréal next month might find their resolution which seeks to ensure that sex workers are legally able to run a “safe and successful business” which is “licensed to safeguard employees, employers and clients” and taxed just like “any other commercial enterprise” never sees the light of day.
In an interview with The Canadian Press, Liberal Leader Justin Trudeau seemed cool to the idea, stating that the focus needed to be “finding a way to keep vulnerable Canadians protected from violence that surrounds prostitution but also is intrinsic to prostitution.” CP reported that Trudeau’s remarks in French went further, that he believed “prostitution itself is a form of violence against women.”
The political reticence surrounding the issue might be forgiven given that even sex workers, advocates and feminists are far from united on the issue.
Kate Quinn, executive director of the Centre to End All Sexual Exploitation (CEASE) was initially disappointed with the SCC’s decision. She feels the voices of the women, men and transgendered people who come to CEASE for help were not heard. She says CEASE is advocating for a Nordic-style law that punishes the buyers of sex rather than the sellers.
Fred Chabot, vice-chair of the board of Prostitutes of Ottawa/Gatineau Work, Educate, Resist (POWER), says her organization opposes the Nordic model because they feel it actually makes life more dangerous for prostitutes.
“If you criminalize one part in the exchange of money for sexual services, what happens is that once again you have an industry that is pushed into the margins, pushed into dark areas, in places where there is less chance of police supervision—alleyways, parking lots,” Chabot told The Globe and Mail.
Lise Gotell, Chair of the Department of Women’s and Gender Studies at the University of Alberta, is also not persuaded that the Nordic model is the path that Canada should take, pointing out that the Nordic countries developed their laws within a welfare framework that places a strong commitment to gender equality, something we’re unlikely to see from the federal Conservatives.
Gotell says the discussion around the sex trade is complex and can trigger divisiveness even within the feminist legal academic community. Like many, she’s personally torn by the decision.
“While I don’t want to be asserting that people involved in the sex trade are unable to express some agency, we do know those most at risk—mostly women, often racialized, often addicted—are extremely disempowered,” Gotell says. “I worry that full decriminalization will remove some of the tools we have available to help them.”
Cindy, a former worker in the sex industry, worries that any approach that starts from a desire to “rescue” some sex workers but takes active steps to deny all of them the basic protections afforded to workers in every other industry.
“Not all sex workers are victims of human trafficking. Not all sex workers are forced into the industry by a drug addiction or a pimp,” she says, adding that people who want to eradicate sex work altogether because of a moral aversion have no interest in talking about creating safe working conditions.
“For people who cannot accept that someone like me would choose to do this kind of work,” she says, “occupational health and safety doesn’t fit the narrative I guess.” Although she left the industry years ago, she plans to continue to advocate for improved working conditions for those in the sex trade.
“Law enforcement and social agencies have tools at their disposal to deal with cases involving minors, exploitation and violence,” Cindy says, echoing the 2006 sub-committee report. “Why don’t they use them and start protecting instead of prosecuting people who—through their own free will—choose to work in the sex trade?”
As the clock runs down for Harper’s government to address the deficiencies identified by the SCC, Cindy reminds us that for sex workers it remains risky business as usual.