Canada’s Supreme Court Decriminalizes Sex Work

On December 20th, I awoke to a Facebook feed full of overjoyed status updates, an inbox full of congratulatory emails, and a voice mailbox full of excited messages from my friends: the famous Bedford v. Canada case had finally reached a decision, and it was an historically favorable one: laws prohibiting sex work has been lifted (including keeping a brothel), and sex work has been decriminalized. The case, which was fought by sex workers Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that Canada’s anti-prostitution laws were unconstitutional, and that policing sex work activity compromised the security of workers by forcing them to make their money clandestinely and often without protection.

According to Maggie’s Toronto, the Toronto-based sex worker action project headed by Chanelle Gallant, the decriminalization of prostitution would serve to greater aid and keep safe the many communities affected by anti-sex work laws: “Since the introduction of the anti-sex work laws in 1985, there has been a 500% increase in mortality amongst our sisters and brothers in the sex industry. Sex workers and people in the sex trade are our family members, our friends, children, colleagues, partners, leaders and part of our communities. Over our 26 year history, we have seen how criminalizing any aspect of the sex industry hurts all of us. Decriminalization is only one step in the process of achieving our goals of living and working in safety and dignity.”

Though prostitution has been legal in Canada for some time, many activities related to sex work have been illegal. The Criminal Code of Canada, a law that codifies most criminal procedures and actions in Canada, lists many elements or definitions of sex work as illegal. The three laws that were being challenged by the Bedford v. Canada ruling are as follows:

a.Communicating For The Purposes of Prostitution in a public place (section 213)

b.Living off the avails of prostitution (section 212)

c.Keeping a common bawdy house (section 210)

In a ruling of 9–0 in favor of Bedford, Lebovitch, and Scott, the Supreme Court of Canada voted that the Criminal Code was unconstitutional, with the stipulation that the strike down of these laws would be delayed one year in order to allow Parliament to make adjustments to the code in accordance with the December 20th ruling. This means that prostitution-related offences will remain within the jurisdiction of the code for one more year.

Repealing these laws will have a drastic affect on sex work communities all over Canada, the changes of which are outlined by Maggie’s in an article entitled What Does The Supreme Court Decision Mean For Sex Workers And People In The Sex Trade? Chanelle Gallant details how the strike down of each of the three laws challenged in the Bedford case would benefit sex trade communities. On section 213 (Communicating For the Purposes of Prostitution in a public place), Gallant makes the case that this law is oppressively class-based, and makes being homeless and a sex worker extremely dangerous.

She writes: “Upwards of 95% of all prostitution related charges are through this law which primarily impacts street-based (outdoor) sex workers….For the most part, street based sex workers experience the criminal legal system as a source of danger and harassment, not protection…Repealing this law would be one step to reducing contact between the criminal legal system and sex workers. Removing this law would remove a significant barrier that sex workers face when attempting to negotiate services, safer sex and assess risk. This is a critical interaction between sex workers and prospective clients that saves lives. Removing this law means that sex workers no longer have to work in areas that are isolated and under-protected, another source of danger.”

Though many local journals and papers herald the ground-breaking ruling on the Bedford case, Maggie’s Toronto appears to be one of the few organizations talking about how the anti-prostitution laws set in place by the Canadian Criminal Code really affect already-marginalized communities of sex workers, working class/poor people, and people of color. Gallant adds: “criminalizing any aspect of the sex industry will put more poor and working-class racialized people behind bars–sex workers, clients and third parties such as management and security.”

There have been many reactions by religious groups and leaders throughout Canada to the ruling. Global News reports: “Advocates for sex workers asked for a seat at the table in the coming year as the government crafts a response. But they and their advocates were skeptical that the Harper Conservatives, known for their tough-on-crime agenda, would be receptive. The Evangelical Fellowship of Canada has the ear of the government, proposing to criminalize pimps and johns, but not prostitutes themselves. That makes the church group an unlikely ally of the Women’s Coalition for the Abolition of Prostitution, which backs this so-called “Nordic model” that has found favour in Sweden, Norway and Iceland.” To those who bring God into the equation, Gallant simply and eloquently responds: “I am also a Christian, and my God doesn’t believe in putting women at this kind of risk and harm.”

In an interview with CTV News, Gallant further takes down the concept of the Nordic Law, also known as the Swedish Model, an action-based ‘solution’ to violence and exploitation targeted towards sex working populations. This model seeks to penalize the demand for commercial sex by curbing the demand and criminalizing clients, or johns, as well as pimps. This law, which claims to promote equality and accountability between the sexes, has been met with resistance from sex workers rights activists like Gallant for years, who believe that the law moralizes the sex trade in a way that does not lead to the end goal of greater safety for sex workers. The model has been criticized for not participating in a harm-reduction prototype that would allow for proper protection of workers, as opposed to attempting to shut the industry down entirely.

The unanimous decision on the Bedford case upheld a decision made last year by the Ontario Court of Appeal, which struck down the ban on brothels, on the grounds that the closure of bawdy houses would force workers on to the streets, therefore endangering them. Reports the Huffington Post: “Chief Justice Beverley McLachlin, writing on behalf of the court, said Canada’s social landscape has changed since 1990, when the Supreme Court upheld a ban on street solicitation. “These appeals and the cross-appeal are not about whether prostitution should be legal or not,” she wrote. “They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not.” McLaughlin further concluded that the job of Parliament is to honor the law, but not to the detriment of the health and safety of Canada’s citizens.

Sex trade activists also added to the argument of Canada’s changing political landscape, protesting that much has happened since the 1990 ruling, including the conviction of Robert Pickton. Pickton, a pig farmer who spent years hunting prostitutes in Vancouver’s downtown East Side until his capture in 2002. He was convicted of murdering six prostitutes after their DNA or remains were found on his farm following suspicions of his involvement in the killings. Fox News reports that the Pickton case influenced the Supreme Court’s December 20th ruling:

“The Supreme Court appeared to acknowledge the Pickton case in the ruling, saying: “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. “Grandma’s House was a safe house established to support street workers in Vancouver’s drug and violence-riddled Downtown Eastside, at about the same time as fears were growing that a serial killer was prowling the streets. The house, which was forced to close in 2000 due to bawdy-house laws, is one of many examples of places of potential refuge for workers who seek safety and comfort.

Canada’s huge victory for the rights of sex workers gives hope to other countries that similar decriminalization will occur, and that other anti-sex trade laws will be struck down in favor of providing health and security to working men and women in the industry. Though there are many organizations and efforts that advocate for the decriminalization of sex work here in the United States, the struggle has thus far been unsuccessful. The current Kantian/Christian attitude towards sex and sexuality in the United States moralizes sex trade in a way that restricts access to commercial sex and limits resources for those already working secretly in the industry. But for many, Canada’s illuminating 9–0 ruling on the Bedford case, as well as incredible organizations such as Maggie’s Toronto shed a positive light onto bleak working conditions happening here in our own country.


Originally published at www.slixa.ch on December 27, 2013.