Canadians Await Decision by Supreme Court on Decriminalisation

Photos by Giuseppe Guida

Contrary to popular misconception, sex work is legal in Canada; the act of exchanging sex for money is not a criminal offence. What is illegal are several activities fundamentally related to sex work, namely, communicating for the purposes of prostitution, (CC s. 213-1c); owning, operating, or occupying a "bawdy house" used for prostitution (CC s. 210); and procuring or living on the avails of prostitution (CC s. 212-1j). These three laws are currently being reconsidered in the Bedford v. Canada Supreme Court hearing, which took place on June 13th. 

The case began in Ontario in 2007, with three applicants: Terri-Jean Bedford, a dominatrix whose S&M dungeon was shut down in 1999 under the Bawdy House law; and two members of Sex Professionals of Canada (SPOC), Amy Lebovitch and Valerie Scott. Together, they challenged the three sections of the Federal law on the grounds that these provisions violate sex workers' right to liberty and security of person, granted under the Canadian Charter of Rights and Freedoms, section 7. The Communication Law also violates sex workers' Charter right to freedom of expression, section 2b. 

The first trial took place in the Ontario Superior Court of Justice in October 2009. In 2010, Justice Susan Himel ruled that all three sections should be struck down. However, the Federal Government filed an appeal against the ruling, which was heard in June 2011. In 2012, the Ontario Court of Appeal maintained Himel's ruling that the Bawdy House provision is unconstitutional. However, it added a clause to the "living on the avails" law, stating that the law still applies in "circumstances of exploitation," such as coercive pimping. Furthermore, it overturned Himel's ruling on the communication law, stating that solicitation is a "public nuisance" and should remain illegal. 

This ruling is most devastating to street-based sex workers, who constitute well over 80% of prostitution offences in Canada, according to national crime statistics, while consisting of less than 20% of total sex workers. They are the most marginalised and impoverished of sex workers, who experience the highest rates of abuse, violence, and murder. At the Supreme Court appeal on June 13th, Attorney Christa Big Canoe, from the Aboriginal Legal Services of Toronto, stated that aboriginal people are over-represented in street-level "survival sex work," and laws about communication for the purpose of prostitution limits their ability to screen their clients, and to keep themselves safe. "The court must consider the reality of Aboriginal street-level sex workers….Their safety and well-being are at risk daily," Big Canoe stated, "Principles of equality and the history of colonialism must be considered in order to protect their Charter rights."

Attorney Katrina Pacey from Pivot Legal Society, presented various real methods that street workers use to stay safe, including bad date sheets shared between workers. She argued that the time used to screen clients can be the "difference between life and death" for a street worker, and the Communication Law forces street workers to rush through this important process. It also deprives sex workers of police protection, and pushes them further into dark and isolated areas of the city to avoid police detection, where they have a higher risk of violence. The Pickton serial murders of 26 women in Vancouver's Downtown Eastside, most of whom were sex workers and drug users, were connected with the increased enforcement of laws against street workers under the Federation of Canadian Municipalities in the 1990's, which pushed sex workers into more dangerous areas, where the sex workers were picked up. According to the Vancouver Police Department, there was a total of 67 missing sex workers in the Downtown Eastside from 1997 to 2002. The Missing Women Commission of Inquiry states that "there is a clear correlation between law enforcement strategies of displacement…and violence against vulnerable women." 

The Crown argued that criminalising some aspects of sex work is justified, since it dissuades people from entering the sex trade, which they believe to be inherently harmful to sex workers and society. Bedford's attorney, Alan Young, responded that it is "ethically unsound" to use laws that harm street workers to "send a message." This argument was reinforced by Pivot Legal Society's factum, which states that a law with the purpose of preventing public nuisance can not be justified when it increases risk of harm for sex workers. 

"Myth-making, fear-mongering, and storytelling" - Young called out the Crown's moralistic arguments. The Crown deviated into sensationalised narratives about human trafficking and addiction, and cited Melissa Farley's problematic research on prostitution. Justice Abella described this moralistic approach using old value judgements as being trapped in a "time warp." Young said: "Pimps are good movie fodder, but they don't represent the reality of the current sex trade," Young explained the distinctions between sex trafficking and sex work, and the various degrees of coercion and agency in different parts of sex work. "There is a lack of nuance in depicting what sex workers are. Blanket prohibitions only work when you have one image of a sex worker," he said. In any case, it is not the government's role to discourage people from entering risky professions by making it more risky: "Mining is a very risky occupation, but people still choose it," Young said. People have the liberty to choose dangerous activities, and Parliament should not further endanger them while claiming to be concerned for their safety. 

Attorney Jonathan Shime, representing the Canadian HIV/AIDS Legal Network and the British Columbia Centre for Excellence in HIV/AIDS, stated that criminalisation "hinders sex workers' access to health care" and "hampers sex workers' ability to control the conditions of their work," including maintaining safe sex practices, such as asking a client to wear a condom, and gaining legal support if a cleint refuses to do so. The laws also push sex workers further underground, where they are less accessible to outreach workers. The intervener factum points out how for New Zealand, decriminalisation has improved public health outcomes.


On the opposite side, the defence argued that street work attracts drugs, johns, litter, criminal elements, and possible harassment of passerby, while brothels attract cars and clients at all hours, possibly disturbing other residents and businesses; further pushing the "public nuisance" argument. They also raised the point that the Avails Law helps police catch traffickers and pimps; and criticised decriminalisation evidence that stated indoor sex work is safer than street work by pointing out that there is trafficking and exploitation both indoors and on the street. A fundamental question regarding the Court's role in this case concerned agency: if someone decides consciously to engage in street work, in spite of criminal laws against it, is the government responsible for the risk of harm that this person knowingly has chosen? Has the government, in this case, deprived the person of his or her rights? While Justice Cromwell seemed to suggest no, Justice McLachlin declined to group prostitution with other vices, such as alcohol and gambling: "The limits on gambling and alcohol aren't injurious," she said, whereas the Communication and Bawdy-House laws put sex workers in very real physical danger.

Meanwhile, outside of the Courthouse, sex workers and allies gathered on the steps of the Supreme Court, in a rally organised by the Ottawa/Gattineau sex worker group, POWER. Speakers at the rally included sex worker activists from Maggie's (Toronto) and Stella (Montreal), who denied the opportunity to intervene in the Supreme Court appeal, while several Christian organisations were granted the right to intervene. Other allies who spoke included Vancouver's PACE, the Pivot Legal Society, SWUAV, Aboriginal Legal Services, FIRST, and SPOC. Right next to these groups, on the same steps, abolitionists held a counter-rally, chanting in support of upholding the existing criminal laws. The Women's Coalition for the Abolition of Prostitution featured Bridget Perrier, a former sex worker who is now a staunch abolitionist, brandishing a bent wire hanger to demonstrate the post-traumatic stress she suffers from her time in sex work. The Native Women's Association of Canada exclaimed that prostitution is harmful to aboriginal women, while the Canadian Association of Sexual Assault Centres proclaimed that prostitution is violence against all women. Other opponents of sex worker rights included the Christian Legal Fellowship, the Catholic Civil Rights League, and REAL (Realistic, Equal, Active for Life) Women of Canada

On Twitter, an international debate was also going on, while people posted their responses to the live web video of the Supreme Court hearing. Stella published a list of media reports, as well as an excellent infosheet on the case. The decision will likely take several months to be reached. The final ruling could fully or partially decriminalise these laws related to sex work, or it could more deeply entrench certain harmful policies.

Whatever the decision in this landmark case, Canadian sex workers are well-prepared to continue organising for our own welfare and human rights.