by Arwen McKechnie
Good news! Or at least, interesting news for Canadian law and social policy. Just in time for Christmas, the Supreme Court of Canada ruled unanimously that the current legislation on prostitution related offences are unconstitutional.
The ruling is suspended for one year, so that the federal government can amend the legislation that has been struck down. Knowing our government, they will do their utmost to find a way around the Supreme Court’s ruling, so for the next year the future of sex work in Canada will be in limbo.
But even with the delay and the inevitable attempts by the government to continue to endanger sex workers under the guise of maintaining law and order, this is a very big deal.
You can read an excellent analysis of the Justices’ decision and the way it avoids dealing with the intersectional issues of race and class here, but rather than talking about the ruling itself, I think the debate around abolition vs. decriminalization/legalization is worth looking at in greater depth. People and groups on both sides of the debate claim that they’re working for the best interests of the women involved (yes, there are men working in the sex trade and this legislation affects them too, but this is still primarily a situation in which the primary providers of sex are women, and the primary consumers are men).
So given that this is an issue of women’s safety and women’s rights, and most everyone involved in the debate wants to promote both, how can they have such differing opinions on how to get there?
For those just introducing themselves to this issue, the discussion is largely polarized between those who support abolition and those pushing for decriminalization and/or legalization. Read more
by Arij Riahi
The Bedford decision released last Friday has already resulted in a great volume of commentary. This (long) post aims to break down the ruling to facilitate further discussion. I also wish to highlight some points of concerns about the unanimous decision that seem important to any feminist conversation on the topic. They center on the question of whether prostitution is a real choice and the realities of indigenous women and women of colour in the sex trade.
Three articles down. Right to security up.
The decision declares three articles of the Criminal Code to be invalid because inconsistent with the Canadian Charter of Rights and Freedoms. They are sections 210, 212(1)j) and 213(1)c) of the Criminal Code.
Specifically, the articles are said to be contrary to section 7 of the charter, which guarantees the right to security – a “fundamental freedom”- to every person.
The arguments brought by the applicants (Terri Jean Bedford et al.) are centred around the idea that the current laws violate the charter by preventing prostitutes from implementing safety measures (hiring body guards, for example) that could protect them from violent clients. The Supreme Court of Canada agreed with this argument.
It is important to mention here that the court has to answer the arguments brought by the applicants. The judges cannot get creative; they cannot decide to consider other arguments and ignore those submitted in front of them. This is why the decision is centered around the safety measures that prostitutes could set up to increase their own security.
The court started its decision by repeating that prostitution is not illegal in Canada. The act of exchanging sex for money is not a criminal infraction. Therefore, the ruling only considers if the current criminal legislation related to prostitution – which are sections 210, 212(1)j) and 213(1)c) of the Criminal Code - violate the charter. I’ll consider the content of those articles and highlight the crux of the court’s arguments for each. Read more
by Tash Wolfe
Last week, the Supreme Court of Canada announced that it will hear the appeal in the Bedford case, which deals with the laws surrounding sex work.
From the National Post:
“The court announced Thursday morning it will hear the federal government’s appeal of a landmark lower-court ruling last March that said some of the country’s anti-prostitution rules placed unconstitutional restrictions on prostitutes’ ability to protect themselves. The Attorney General of Canada’s application for leave to appeal was granted without costs. The court will also hear a cross-appeal by three former and current sex workers that allows them to argue that the rest of the prostitution laws they had challenged are also unconstitutional.”
This decision will allow the Bedford case to be heard before Canada’s highest court. According to Katrina Pacey, litigation director for Pivot Legal Society, this case involves “fundamental rights for sex workers to safety and freedom from criminalization, which we feel is one of the most important and pressing social justice issues of our time.” Pivot Legal Society will be joining together with PACE and Sex Workers United Against Violence Society to form a coalition and apply for intervenor status:
“Our purpose at the Court of Appeal was to bring a strong voice from the Downtown Eastside, making it very clear that for sex workers in this community, law reform is a matter of life and death. The laws are a major impediment to creating safety for many sex workers who face horrific violence while working on the street.” Read more
Earlier this week the Ontario Court of Appeal handed down a decision in the Bedford case, which deals with the laws surrounding sex work.
From the CBC:
The court released a decision Monday on an appeal of Superior Court Judge Susan G. Himel’s high-profile ruling that three provisions of the Criminal Code pertaining to prostitution should be struck down on the grounds that they are unconstitutional.
The Ontario appeal court agreed with two-thirds of Himel’s ruling, namely that the provisions prohibiting common bawdy-houses and living off the avails of prostitution, are both unconstitutional in their current form.
But the court disagreed that the communicating provision must be struck down, meaning that it “remains in full force” and the existing ban on soliciting will continue.
The court also said that the prohibition of living off the avails of prostitution – as spelled out in Section 212(1)(j) of the Criminal Code – should pertain only to those who do so “in circumstances of exploitation,” and will be amended to reflect that. The changes to the “living-off-the-avails” provision will not come into effect for 30 days.
After the jump we’ll go to responses from Gender Focus contributors, but first here were some responses from other media and feminist organizations (only excerpts: click on links to read their entire reactions):
From WAVAW’s Media Release:
“Once again the legal system is missing the mark on prostitution. Women will continue to go missing and be murdered, if there is no real work being done to aid women. Social programming and funding into women’s services are what is needed. Hiding women from plain sight to create a false sense of safety in community is not the answer. The women who are engaging in sex work are not the individuals creating the violence; it is the men who seek to exploit women’s bodies. Those men come from the very neighborhoods that these judges say they wish to create safety in; they plan on doing this by eliminating the undesirable social consequences of sex work. The undesirable consequences are that men are able to exploit marginalized, at-risk women in Canada” says Darla Goodwin, WAVAW Rape Crisis Centre Coordinator of Aboriginal Women’s Services.
From Pivot Legal Society via Rabble.ca:
“I am very concerned about the continued criminalization of women working on the street. These are the women who face the most charges, face the most violence and have the fewest options” says Pivot Board Member Kerry Porth. “But I am glad to see that the Court recognized that these laws were not put in place to prevent prostitution and that the current legislative scheme does not reflect the values of dignity and equality for sex workers.”
From Laura Johnston at The F Word Feminist Media Collective:
The other strange part about this conclusion is that the Court acknowledged that the evidence demonstrated that women prostituted on the street do not move indoors, even if it’s legal. The record from other countries that legalized brothels showed that there was no movement from the street to brothels following decriminalization. There are many reasons for this. An obvious one is that brothels won’t let women in who struggle with mental illness, addiction, or have other health problems. Another is that many women prefer prostituting on the street because they have more control than in a brothel where the manager negotiates with johns on their behalf.
Now here’s what Gender Focus contributors had to say: Read more