supreme court of canada

The Bedford Decision: Deconstructing the Debate Around Selling Sex

Photo of Supreme Court of Canada buildingby 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[1] 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

Posted on by Arwen McKechnie in Can-Con, Feminism, Politics 1 Comment

Race, Security and Choice: The Bedford Decision Explored

Gavel and justice scalesby 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

Posted on by Arij Riahi in Can-Con, Feminism, Politics 2 Comments

Gender Focus Panel: SCOC Ruling on Wearing Niqabs in Court

niqab

This past week the Supreme Court of Canada issued a ruling on whether Muslim women have a right to wear a niqab in court.

Via the CBC:

A Muslim woman who is the complainant in a sexual assault trial in Toronto has lost her bid before Canada’s top court to have an unimpeded right to wear her niqab while testifying.

In a split Supreme Court of Canada decision released Thursday, the seven judges largely upheld a lower court’s ruling that the woman, known only as N.S. to protect her identity under a court-ordered publication ban, may have to remove her niqab.

[...]The Court of Appeal had ruled the woman may have to remove her niqab if her credibility became an issue.

The court also set out criteria that a judge must consider in such cases, including whether the veil would interfere with cross-examination and whether the witness would be appearing before a judge only or before a jury.

Toronto’s Barbra Schlifer Commemorative Clinic was one of three intervenors in the case, arguing that “removal of a complainant’s niqab would be a disincentive to the reporting of sexual assaults and impede access to justice for an already marginalized group.” The Clinic stated they felt the split decision recognized the complex rights’ issues, and they thanked Justice Abella for her dissenting opinion, which stated in part that: “the harmful effects of requiring a witness to remove her niqab, with the likely result that she will likely not testify, bring charges in the first place…is a significantly more harmful consequence than not being able to see a witness’ whole face.”

Here’s what three Gender Focus contributors had to say about the ruling.

Jessica Critcher

I’m an atheist– and a really militant one at that. I even won a scholarship and landed my first publication ever because of how unimpressed I am with god and by extension every religion ever (especially yours).

With this in mind, I would like to express my disapproval for the SCOC’s ruling with regards to NS wearing a niqab, because this has almost nothing to do with religion. Reading the news coverage, it’s obvious what the problem is:

Lawyers for the two men accused of sexually assaulting her when she was a child argued that a fair and open trial means the face of a witness must be seen because facial cues are important to establish credibility.

Bolded for emphasis. Rape survivors have to establish credibility. NS is on trial just as much as much as her rapists. And now, in addition to being assaulted, in addition to facing her rapists in court, she may have to be similarly violated and humiliated by the legal system.

I’m not a fan of gendered religious head coverings. But here’s the thing, my opinion as a white person and as someone who does not participate in that religion is irrelevant. Regardless of whether head coverings are oppressive or not, (which is complicated!) and whether NS wears her niqab as “a religious requirement, or as ‘a personal preference and a matter of comfort’” or not, the legal system is already failing her, and her case hasn’t even made it to trial yet. I’m not literally praying for her, but you get the idea.

Sarah Jensen:

This is a really tough one. I disagree with outright niqab bans, such as those enacted by France and Belgium. I can see the necessity of removal in certain circumstances, though, such as when getting a photo taken for identification. The line blurs for me when it comes to testifying in court. I think that the Supreme Court came to the right decision– that the niqab’s allowance is best decided on a case-by-case basis.

I see both sides of the argument, but in this particular case I would be more inclined to let N.S. keep her face covered. Testifying in court can be extremely traumatic for sexual assault victims, as they must face those who harmed them, while simultaneously recounting the painful details to strangers. Many victims already grapple with feelings of shame and exposure, and forcing N.S. to unveil may amplify these feelings. It may also discourage other veiled Muslim women from pressing charges.

Jasmine Peterson:

The Supreme Court’s ruling on requiring a woman to remove her niqab during her testimony is not only disappointing, but it’s paternalistic and, as far as I’m concerned, an impediment on an individuals’ rights. What is particularly disconcerting about this decision is the composition of the individuals who have passed this ruling – none of whom appear to be themselves Muslim women. I think this is a huge (and consistent) problem in Canada in making decisions regarding minority groups, that those making the decisions are not minorities themselves and therefore lack essential insights upon which to base their decisions in a more nuanced and informed manner.

What is perhaps particularly problematic from my perspective in this case is that the defense lawyers asserted that “facial cues ‘can be significant information that help the observer understand what a witness is attempting to communicate and get a sense of who the witness is and how he or she is reacting to questioning.’” Having studied forensic psychology, I worry that the premise behind this requirement is faulty, at best. It is certainly not supported by research. A witness is not on trial, and this seems to me to be a sort of revictimization. But even more than that, juries are not particularly good at judging a persons’ honesty by their demeanor or their facial expressions. In fact, people are not particularly good at detecting lying most of the time. So the facial cues alluded to by this defense lawyer are likely inconsequential to getting to the truth anyhow.

Finally, I think the idea that the niqab “undermines gender equality” is also based in misunderstanding and wilful ignorance. That is not to say that, for some, the niqab is not experienced as an oppressive garment. However, for many, the niqab is worn not out of some oppressive imposition but because of personal and religious beliefs. It is experienced as a positive thing, not a negative. I find it troublesome when I hear essentialist statements about the oppressiveness of the niqab when I have heard it spoken of very positively by some Muslim women who choose to don the garment for spiritual reasons. Unfortunately, I think this widely held misconception of the niqab as only being oppressive influences decisions like these being made by people who are on the outside looking in. Too often our Western views are imposed upon others; as a multicultural country I think it time we become more sensitive in addressing the diversity which comprises Canadian citizens, and their rights.

(photo via Wikimedia Commons)

Posted on by Jarrah Hodge in Can-Con, Feminism, Racism 4 Comments

Supreme Court to Hear Appeal in Bedford Case on Sex Work Laws

Gavel and justice scalesby 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

Posted on by Tash Wolfe in Can-Con, Feminism, Politics Leave a comment

Vancouver Sex Workers Granted Public Interest Standing

pivot swuavby Tash Wolfe

Late last week, the Supreme Court of Canada unanimously ruled and granted public interest standing for Sex Workers United Against Violence (SWUAV) and Sheryl Kiselbach to challenge laws related to adult prostitution.

Sex Workers United Against Violence (SWUAV) is an organization run by and for street-based sex workers in the Downtown Eastside of Vancouver, BC. The group was formed in 2007 as a way to address the violence and marginalization in the DTES community and to work towards challenging Canada’s prostitution laws.

Sheryl Kiselbach, a former sex worker with 30 years of experience who now works with street-based sex workers, joined the group in this important challenge. They filed a constitutional challenge to Canada’s criminal code, which was stopped by the federal government who brought in a motion preventing the case from going to trial. At this time, the B.C. Supreme Court ruled that the group did not have standing since they had not been charged with a prostitution-related offence. This decision was reversed by the

B.C. Court of Appeal and appealed by the federal government to the Supreme Court of Canada on January 19th, 2012.

“This decision opens the door for new, safe, and better ways for marginalized people to bring human-rights claims to court in a way that protects them and makes this kind of litigation more realistic,” said Katrina Pacey, litigation director for Pivot Legal Society and counsel for Kiselbach and SWUAV. “Specifically for our clients who work in street-based sex work, they are women who struggle with violence. They struggle with dire poverty, with addiction, with homelessness… They’re not looking for their clients to be criminalized either. They’re looking for consenting adults to be permitted to engage in consensual sex, and for the police to protect them when they ask for it instead of judging or punishing anyone in the industry just for the sake of being in the industry.”

As feminists, it is important to acknowledge the ongoing conflict between and within “waves” and womens’ groups around sex work and to strongly advocate for the decriminalization of prostitution. Read more

Posted on by Tash Wolfe in Can-Con, Feminism 3 Comments