“It is not a crime in Canada to sell sex for money:” Chief Justice McLachlin

Supreme Court strikes down prostitution laws

Fredericton – The Supreme Court of Canada struck down Canada’s prostitution laws in a unanimous decision in late December, giving the Canadian government one year to come up with new legislation. The laws considered unconstitutional include those that prohibit brothels, living on the avails of prostitution and communicating in public with clients.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes… It is not a crime in Canada to sell sex for money,” wrote Chief Justice McLachlin in a statement that called Canada’s laws on prostitution lacking in “constitutional muster.”

The ruling was in response to a court challenge brought forward by women who have worked in the sex trade, Terri-Jean Bedford, Amy Lebovitch and Moncton native Valerie Scott, who now resides in Toronto. The women argued that the law prevented them from safely working in the sex trade. While sex work had not been illegal, brothels, living on the avails of prostitution and communicating in public with clients were. This limited the possibilities for sex workers to have safe working conditions.

Scott believes that the court decision will not completely change our society but it will ultimately improve the safety of sex workers. “Even if new laws are now rewritten, this does not mean there will be a brothel next door to you, or that the streets will be flooded with sex workers,” says Scott.

“It’s important to know that we left 90% of the procuring law (Sec. 212 of the Canadian Criminal Code) intact, ”says Scott. “[W]e did not challenge two thirds of the law that affects the street. Nor did we touch any of the human trafficking, and child exploitation laws.”

The laws that were challenged specifically address issues of safety for sex workers concerning living on the avails of prostitution and working in a bawdy house. “What it has to do with is working alone. We would like to work together,” states Scott.

Scott is concerned that Canada will adopt laws similar to Sweden and Iceland. According to Scott, “the Nordic style of laws that Parliament is talking about are equally as dangerous for us because they force us to work secretively, independent of each other, and untraceably.”

The federal governments of countries that have the Nordic laws publicize them as criminalizing the people who abuse and control sex workers. “[The government] already has 90% of the procuring law to go after people who exploit us. They don’t need anymore,” argues Scott.

Scott and her organization, Sex Professionals of Canada, have not given up hope that this decision can improve the lives of sex workers for the long term. “We are going to begin lobbying the federal MPs. We are speaking to anyone who will listen,” says Scott.

Dr. Jula Hughes, a professor in the Faculty of Law at the University of New Brunswick in Fredericton welcomes the decision. “The current legal regime is dangerous to sex workers. It needed to go and in the absence of legislative action, the Supreme Court did entirely the right thing,” says Hughes.

The high court’s decision leaves the federal government a lot of control over the way this decision will affect Canadian society. According to Hughes, “The court decision does not tell Parliament how to solve this problem, it just says that whatever legal regime is adopted, it cannot put people’s lives at risk, nor can it make a pre-existing risk worse.” Hughes points out that there are many other factors that affect the lives and working conditions of sex workers outside of federal laws. “Much will depend on whether provinces open up occupational health and safety and labour protections and on whether municipalities make reasonable zoning decision that strike an appropriate balance between the interests of sex workers and others,” says Hughes.

The Bedford decision has the opportunity to provide the country with a more meaningful conversation about the oldest profession in Western society. “The absence of sex worker voices in the media is a huge loss, not only because they could counter the public stigma that makes their lives so difficult but because they could teach us so much about the way the world really works,” writes Gayle MacDonald and Leslie Ann Jeffrey, authors of the 2011 book, Sex Workers in the Maritimes Talk Back.

“It’s important to stress that Bedford is not a panacea for sex workers’ rights in Canada. Criminalization and stigmatization of sex workers do not exist in a vacuum: they are deeply rooted in misogyny, racism, and poverty— social conditions that are legislated as well as encultured,” writes Fannie Hustle in a blog post for the Toronto Media Co-op that argues for a grassroots sex worker movement. “We don’t need the state, or anyone, to legitimize our dignity: we affirm it ourselves, in our communities, with our families, friends and lovers.”

Nicole Saulnier is a third year political science student at the University of New Brunswick. She is doing an internship with the NB Media Co-op through the UNB Arts 3000 program.