Race, Security and Choice: The Bedford Decision Explored

by | December 23, 2013
filed under Can-Con, Feminism, Politics

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.

Section 210 says that keeping a “common bawdy-house” is a criminal infraction. To be owner, landlord, tenant, occupier or to be otherwise found inside a common bawdy-house is also a criminal infraction. A “common bawdy-house” is defined at section 197 as a place that is kept, occupied or resorted to by someone for prostitution.

The court had this to say on this section (emphasis is mine):

[62]  The practical effect of s. 210 is to confine lawful prostitution to two categories: street prostitution and out-calls… In-calls, where the john comes to the prostitute’s residence, are prohibited.  Out-calls, where the prostitute goes out and meets the client at a designated location, such as the client’s home, are allowed.  Working on the street is also permitted…

[64]       First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards.  This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks …  Second, it interferes with provision of health checks and preventive health measures.  Finally — a point developed in argument before us — the bawdy-house prohibition prevents resort to safe houses, to which prostitutes working on the street can take clients.

The court then highlights the case of “Granma’s House”, a safe house established in Downtown Eastside of Vancouver around the time when rumours about a serial killer targeting prostitutes were circulating. The house was eventually shut down by the authorities. The suspected killer was in fact Robert Pickton who is now serving a sentence for the murder of six women, but presumed to have killed close to 50 women.

Section 212(1)j) says that it is a criminal infraction to be living “wholly or in part on the avails of prostitution of another person”. The court found that this article denies prostitutes access to “security-enhancing safeguards” to reduce the risks they face:

[66] …While targeting parasitic relationships… [section 212(1)j] has a broad reach.  As interpreted by the courts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute… In effect, it prevents a prostitute from hiring bodyguards, drivers and receptionists.  The application judge found that by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person (para. 361).  As such, she found that the law engages s. 7 of the Charter.

Section 213(1)c) says that anyone who “in a public place of in any place open to public view” communicates with another person to engage in prostitution or obtaining sexual services commits a criminal infraction. The court highlights here that face-to-face communication is essential for screening clients for intoxication or propensity to violence.

Response from Indigenous Women and Women of Colour

The court’s analysis creates a dichotomy between indoor and outdoor prostitution, where the court seems to be implicitly considering indoor prostitution to be safer. There are no discussions in the decision about that assumption.

Beyond the private-public difference, the decision makes no other distinction as to the realities of different prostitutes. some groups representing indigenous women and women of colour – both acting as interveners in the case and incidentally taking a strong stance against prostitution – have highlighted links to systemic oppression and racism.

Reacting to the ruling, the Asian Women Coalition Ending Prostitution was “deeply disturbed” that the court “did not take into account the profoundly racist and sexist nature of prostitution.” In their factum submitted to the court, they write: “Freedom from prostitution is not an equal opportunity phenomenon… Prostitution helps to sustain various hierarchies, including racial hierarchy”. Their document explains further the notion of the sexualization of racism.

Aboriginal Legal Services of Toronto, also an intervener in the case, ring a similar bell. “Placing the blame for the violence on these individuals [pimps and johns] mischaracterizes this as random acts of individualized violence, as opposed to violence that reflects and perpetuates the marginalization that has resulted from colonialism” reads their factum. The group talks at length of the reality of “survival sex” for indigenous women.

The Native Women’s Association of Canada (NWAC), another intervener, writes in a press release that the decision “fails to protect Aboriginal women and girls”. They add that the Canadian “state has pushed Aboriginal women from one institution to another – residential schools, foster homes, group homes, and prisons, to name a few. NWAC refuses to accept brothels as the new official institution for Aboriginal women and girls and we refuse to accept that prostitution is the solution to addressing women’s poverty”.

Suspending Decriminalization

After finding that the three sections of the criminal code violate article 7 of the charter, the courts declared them to be invalid. The judges; however, decided to suspend this declaration of invalidity for one year.

This means that Parliament has to pass new laws to fill in the gap in the next few months. The Conservatives could decide to leave prostitution unregulated, but that option seems highly unlikely, given the government’s reaction to the ruling and the fact that very few countries leave prostitution completely unregulated.

In their decision, before deciding to give the government time to address the issue, the Supreme Court makes some revealing remarks about sex workers and how they are viewed in society (again, emphasis mine):

[167]                      On the one hand, immediate invalidity would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it.  How prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated.  Whether immediate invalidity would pose a danger to the public or imperil the rule of law … may be subject to debate.  However, it is clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians.

The court doesn’t provide details to the assertion that lack of laws related to prostitution would be concerning. The idea is not discussed anywhere else in the decision.

Vocational Risks: Is Sex Work a Choice?

The state, through the Attorney General, tried to argue that prostitutes choose to engage in sex work and they should therefore accept the risks inherent to their business. In other words, it is their choices – and not the law – that makes them more at risk.

The court rejected the state’s argument and mapped out the complex question of choice in this manner (emphasis is mine):

[86]                          First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so…  Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money…

[87]                          Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.  The causal question is whether the impugned laws make this lawful activity more dangerous.  An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  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.

[89]                          It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.  The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.  The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

In other words, the question of whether or not prostitutes freely choose their line of work doesn’t insulate the state from the effect of its legislation.

Overall, the court has struck down three sections of the Criminal Code related to prostitution because they prevent sex workers from implementing safety measures like hiring staff or talking to clients to better screen them. For the judges, this negative effect is disproportionate to the goal of the legislation to curtail the “possibility of nuisance” caused by street prostitution.

Though the decision appears to be understanding of the realities and dangers sex workers face, it contains a few debatable assumptions.

Importantly, the analysis around section 7 of the charter glosses over differences among sex worekrs. To put it plainly, the idea that the law shouldn’t criminalize those who freely choose to engage in prostitution shouldn’t negate the equally important idea that systemic inequalities based on race and class can also push some women into prostitution.

In other words, this constitutional challenge is brought by a specific group that might not be representative of all sex workers. Yet, the decision applies to everyone in Canada. Conversation about the (de)criminalization of any aspect of sex work cannot occur without parallel conversations about race, colonialism, and systems of oppression. The judgment, however, fails to do so.

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