A Comment on Bedford

The Supreme Court of Canada was unanimous: our prostitution laws do more harm than good. The laws take a lawful activity and make it more dangerous. It is an important victory for sex workers and their allies who support decriminalization. But, the political battle has only just begun.

Three criminal laws were at issue: the laws preventing bawdy houses or brothels (s.210), living on the avails of prostitution (s.212(1)(j)) and communicating in public for the purposes of prostitution (s.213)(1)( c)). Each law, according to the Court, increases the risks faced by sex workers.

The bawdy house law prevents sex workers from working in one place, rather than on the street or other risky locations. “A law that prevents street-prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.” [par.136]

The law preventing living on the avails prevents sex workers from hiring body guards, drivers, even receptionists, who could increase their safety.

And the communication law increases the risk faced by sex workers, by forcing them into more isolated areas, preventing them from taking the time to screen clients and setting terms such as condom use or safe houses.

In the Court’s view, each of these laws constituted a violation of section 7 of the Charter. Each of the laws was found to violate the security of the person, and to do so in a way that violates the principles of fundamental justice. The harms caused by bawdy house laws and the communication provisions were both found to be grossly disportionate to the objectives of the laws, namely, the deterrence of community disruption and nuisance. According to the Court,

Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.” The living on the avails provision was struck down on the basis of overbreadth; “the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.

On the question of remedy, the Court struck down these three laws as unconstitutional, but suspended the declaration for a year.

There is much to applaud in this ruling. But, there is also much in the ruling that sets the stage for a less than progressive response. The Supreme Court ruling is, after all, all about reducing the risk and danger of prostitution. There is nothing in the ruling about how these laws harken back to a nineteenth century sexual morality of protecting the public from bad sex and fallen women. There is nothing in the ruling about demoralizing and decriminalizing prostitution. Admittedly, this was not a focus of the arguments of those challenging the law. But, the discourse of harm sets the stage for what is still to come.

Indeed, the Court made it clear that its ruling “does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.”. There is, instead, an open invitation to Parliament to write new criminal laws. According to the Court,

The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.

The Minister of Justice, Peter MacKay has already stated that his government will try to do precisely that.

We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons.

The decriminalization of prostitution should not mean non-regulation. After all, we are Canadian – we regulate everything. Rather, sex work after decriminalization would require extensive discussions around zoning, licensing, occupational health and safety, employment standards legislation, amongst other regulatory options. There are many models of regulation, and as other jurisdictions that have decriminalized prostitution have shown, some options are better than others from the point of view of the rights of sex workers. Turkey and Latvia for example have extremely regressive regulation, requiring licensing and mandatory STI testing. In other countries, like Australia and Germany, laws vary state by state or municipality by municipality, with some jurisdictions finding creative non-criminal forms of regulation, though each model having its unique advantages and disadvantages.

This is the discussion we should be having. But the next year is likely to be taken up not with the question of whether to criminalize prostitution, but rather how to criminalize prostitution.

The call has come quickly to turn to the so-called Nordic model. In Sweden, Norway and Iceland, the purchase of sex is criminalized, rather than its sale. In other words, the focus is on criminalizing the clients, not the sex workers. It is an abolitionist model premised on the idea that prostitution is inherently exploitative of women. All other forms of prostitution related activities – like operating a brothel or living off the avails of prostitution – remain illegal.

This is not a model favoured by sex workers or their allies. The model has come under considerable criticism, precisely at the same time as its popularity is spreading. Sweden has admitted in its its Country Progress Report to the UN General Assembly Special Session on AIDS that it was unable to estimate the number of people involved in prostitution since it is largely hidden. Swedish sex worker supporter Petra Östergren has described how sex workers continue to feel targeted by police, and unable to seek assistance from the police, for fear that they will be forced to report a client. They feel forced by the law to work in more dangerous conditions. They express, in other words, the very kind of harms that led the Supreme Court of Canada to strike down Canada’s prostitution laws.

The Supreme Court of Canada vindicated the rights of sex workers. But, the Court has also set the stage for the continued criminalization of prostitution. For those in favour of decriminalization, the battle is still in its early stages. We now need to shift to the Parliamentary arena, with a less than hospitable conservative government. There is a long road ahead, and sex worker rights are anything but guaranteed.

[A somewhat shorter version of this comment appeared in the Globe and Mail.]