The Supreme Court of Canada’s much-anticipated decision in Canada (Attorney General) v Bedford (Bedford) represents an important victory for sex workers’ rights. Although there is a long road ahead in terms of implementation, which will be peppered with contentious debates about the role of the state in the regulation of sex work and the legitimacy of sex work as labour, it is important to pause and look at the decision with a critical lens, taking into account the symbolic significance of this landmark case. Simultaneously, the Court’s decision also highlights serious concerns regarding the attainment of civil liberties on the ground and reflects normative understandings of sex work.
The Supreme Court affirmed the lower court ruling of Justice Himel of the Ontario Superior Court, who found that three provisions of the Criminal Code, which make it an offence to communicate the sale of sex in public, to live off the avails of prostitution and to operate a bawdy house, violate section 7 of the Charter, as they constituted a “severe deprivation” of sex workers’ right to security of the person (2010 ONSC 4264). Justice Himel also found that the communicating provision infringes the right to freedom of expression under section 2(b) of the Charter.
In finding that all three provisions were unconstitutional, the Supreme Court reversed the Ontario Court of Appeal’s holding on the communicating provision, which was that the objective of preventing the “nuisance” associated with street-based sex work in residential communities is not arbitrary, overbroad or grossly disproportionate. Further, the Court of Appeal held that it was bound by the Prostitution Reference, in which the Supreme Court ruled, in 1990, that the communicating provision does not violate the guarantee of freedom of expression under section 2(b) of the Charter.
In this sense, the Court of Appeal implied that sex workers are not part of the ‘community,’ but outsiders who are unworthy of legal protection. As a former peer support worker in Vancouver’s Downtown Eastside, I have personally witnessed the impact of the communicating law on the most marginalized sex workers, who are often racialized, older and disabled women who use illicit drugs. The communicating law puts these sex workers in a very vulnerable position in which they have to negotiate the terms of their labour in clients’ cars, in poorly-lit industrial areas and in back alleys, where they may be robbed, beaten or raped. The pervasiveness of ‘bad dates’ is inherently connected to the communicating provision, which is documented in social science evidence that was before the Court.
Consequently, the Supreme Court’s holding in Bedford that the communicating law is unconstitutional is a huge victory for sex workers. Our highest Court has finally definitively stated that the regulation of public space and the policing of the poor, embodied in normative concepts such as ‘nuisance,’ ‘disorder’ and a NIMBYist (not in my backyard) mentality, do not trump the basic human rights of sex workers.
Although the Court acknowledged that the social, political and legal landscape has greatly shifted since the Prostitution Reference and that the principle of stare decisis is subordinate to our constitutional rights, it unfortunately declined to comment on the effect of the communicating law on freedom of expression under section 2(b). Instead, it held that determining the constitutionality of the communicating law on section 7 grounds was sufficient.
The Court also rejected the argument of the Attorneys General that sex workers engage in sex work by ‘choice’ and that this is the cause of their occupational harm. The Court importantly affirmed (at paras. 79 and 86) what sex workers and their allies have asserted for decades: that some sex workers enter the profession by choice and others by circumstance, but that all are worthy of legal protection. Consequently, the three provisions must be struck down because they are harmful and reinforce systemic patterns of violence and marginalization. The Court concluded by ordering a suspension of invalidity for one year, in order to allow Parliament to draft new laws which do not violate the constitutional rights of sex workers.
Suspending a declaration of invalidity means that that the effect of the impugned legislation is “suspended” until Parliament fills the void. In Schachter v Canada, the seminal case on constitutional remedies, Lamer CJC, as he then was, cautions that the question of whether to suspend a declaration of invalidity “should turn not on considerations of the role of the courts and the legislature but rather on considerations relating to the effect of an immediate declaration on the public.” The Court further elucidates that the impact on the public encompasses safety issues, potential threats to the rule of law or where the impugned law is underinclusive, as opposed to overbroad.
Unfortunately the Court in Bedford imposes a suspended declaration with scanty reasoning. Citing Schacter, the Court acknowledges that public safety and destabilization of the rule of law may be engaged but fails to provide any analysis; they are only factors “of much debate.” The Court then states that leaving sex work unregulated would be of a “great concern to many Canadians.” Subsequently, the Court acknowledges that leaving three prohibitions “in place in their present form leaves prostitutes at increased risk for the time of the suspension — risks which violate their constitutional right to security of the person.” Without further inquiry or balancing, the Court then concludes that although choice is not “an easy one,” it must result in a declaration of one year.
The Court’s decision to impose a suspended declaration suggests that the “great concern of Canadians” outweighs the risk to sex workers’ safety. It mirrors prior judicial treatment of sex workers, such as in the Court of Appeal’s decision in Bedford or in the Prostitution Reference, in which sex workers are constructed as separate from Canadian society. This ‘othering’ legitimizes the positioning of sex workers’ rights as subordinate to ‘mainstream’ society. Contradictorily, it undermines the Court’s previous statements that affirm sex workers possess a right to safer work.
Scholars like Kent Roach highlight that the Court’s use of constitutional remedies reflects tensions concerning the role of the judiciary, in which the Court is highly wary of intruding into the legislative sphere. The Court in Schachter cautions that such concerns should not guide the analysis of whether to order a suspension of invalidity, as the focus rests on the effect on the public. Yet, the decision in Bedford regarding remedy means that sex workers can still be charged under the impugned laws for the next year. How does this affirm public safety and the rule of law?
In this sense, Bedford is emblematic of a broader pattern in the jurisprudence in which the Court has not followed the caution of Lamer CJC that suspended declarations should not being guided by concerns of the institutional role of the judiciary. In Bedford, the Court’s unease of intruding into the legislative realm appears to trump sex workers’ right to security of the person which the decision previously affirmed.
The Court’s paralysis regarding its institutional role in Bedford has broader implications for sex workers’ rights beyond the one-year suspension of invalidity. The Court is clear that Parliament is free to regulate sex work. It states that its decision does not signify that “Parliament is precluded from imposing limits on where and how prostitution may be conducted”. Unfortunately, it provides no guidance, opinion or analysis of how it believes the legislature can craft laws which will pass constitutional muster.
The feminist community remains divided regarding the regulation issue. The current prominent debate is between those who espouse decriminalization, which will involve the regulation of sex work as labour, and those who support the Nordic or Swedish model, which is based in an abolitionist perspective and criminalizes the clients of sex workers. There have been murmurings for years about the government’s interest in implementing the Nordic Model.
Social science evidence demonstrates that the Nordic model fails to address the root causes of the marginalization of sex workers, and often results in driving sex work underground, increasing rates of HIV/AIDs, stigma and violence. From a rights based perspective, this approach assumes that sex work is not legitimate labour and denies sex workers’ the right to organize and access safer work, as their very livelihood is driven into the shadows.
If we look at Bedford as guaranteeing sex workers’ right to security of the person, the Nordic model would likely not pass constitutional scrutiny as it results in many of the consequences the Court sought to ameliorate. The danger with the Nordic model, which reflects the broader debate around sex work, is that is often very hard to separate moral and normative ideas of race, class, sexuality and gender from the practical implications of various legal approaches. For many, the idea of sex work as inherently exploitative is very morally persuasive and can easily colour understandings of how such a model would work on the ground. Indeed, it would be a huge waste of legislative and judicial resources to implement the Nordic model, which current evidence suggests infringes the very Charter rights that Bedford guarantees, only to have this regime subsequently challenged and found to be unconstitutional. Most troubling would be the impact on sex workers’ health and safety, over the course of what would likely be decades.
The Court notably states that:
it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes…The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.
Indeed, in the future we must think critically about the role of the state in regulating sex work and protecting sex workers’ safety. In order to guarantee the constitutional rights of sex workers, the state must ensure that sex workers have a right to organize and have full access to occupational health and safety, employment standards and collective bargaining rights, as well as employment-related benefits such as disability and pensions, just like any other worker. Unfortunately, the Nordic model precludes access to these rights because it aims to abolish sex work. Decriminalization is thus the only means in which sex workers’ rights under the Charter can be guaranteed.
We do not yet know definitively how the government will respond to Bedford. Although we must celebrate this victory, it is also important to be cautious, and know that the fight is not yet over. Ideas about sex work being illegitimate labour and the denial of sex workers’ humanity are historically embedded and highly pervasive in our culture. Indeed, they are responsible for a legacy of gendered and racialized violence. This is why Bedford is so important. Simultaneously, however, we cannot overlook that the Court in Bedford never refers to the applicants, who bravely brought forward their life stories in order to make a revolutionary legal change, as ‘sex workers.’ Instead, the Court characterizes them as ‘prostitutes.’