Supreme Court of Canada will deliver ruling on prostitution laws before Christmas
When government officials want to minimize media coverage, they often save their information dumps for a Friday. And if they want to seriously curtail public awareness, they do this before a long weekend.
This reduces discussion in the media because by the following week, it's old news.
So what are we to make of the Supreme Court of Canada's decision to release one of its most-anticipated rulings on a Friday (December 20) before Christmas and Boxing Day?
At the end of this week, Canada's highest court will render its verdict in the federal government's appeal of Canada (Attorney General) v. Bedford, Lebovitch and Scott.
Terri-Jean Bedford, a dominatrix, operated the "Bondage Bungalow". Amy Lebovitch and Valerie Scott work for Sex Professionals of Canada, which advocates for legalization of the sex trade.
The three Ontario women won a landmark ruling in 2010 in the Ontario Superior Court advancing the rights of sex workers.
At the time, Justice Susan Himel's decision stated that Criminal Code prohibitions on keeping a common bawdy house, living off the avails of prostitution, and soliciting in public for the purpose of prostitution were unconstitutional. Himel concluded that these laws violated sex workers' legal rights to freedom of expression and security of the person.
In 2012, the Ontario Court of Appeal upheld Himel's ruling concerning laws about keeping a common bawdy house and living off the avails.
However, three of the five judges on the Ontario appellate court panel upheld the ban on communicating in public for the purpose of solicitation, which overturned this aspect of Himel's decision. The Ontario high court stated in its ruling that street soliciting "poses real and grave dangers" to sex workers.
Last June, Vancouver-based Pivot Legal Society's litigation director, Katrina Pacey, appeared before the Supreme Court of Canada to argue this case on behalf of Downtown Eastside sex workers.
Pivot joined forces with the PACE Society and the Downtown Eastside Sex Workers United Against Violence as interveners to oppose the continued criminalization of adult sex workers who want to work cooperatively or hire their own security.
Other interveners included the B.C. Civil Liberties Association, the B.C. Centre for Excellence in HIV/AIDS, Vancouver Rape Relief Society, Canadian Association of Sexual Assault Centres, Real Women of Canada, Candian Association of Elizabeth Fry Societies, and the Canadian Civil Liberties Association, among others.
No matter how the court rules, some of the interveners are going to be disappointed with the outcome.
My bet? The court will uphold Himel's decision overturning bans on keeping a common bawdy house and living off the avails.
But I'm guessing that the Supreme Court of Canada justices will retain the ban on soliciting in public as a reasonable limit on sex workers' charter rights under section 1 of the Constitution Act, 1982.
The timing of this decision will minimize any controversy, especially if the judiciary essentially expands sex workers' legal rights and offers them greater protection in the future.
Parliament is also shut down for Christmas. This will undermine the Conservative government's ability to criticize the Supreme Court of Canada in front of the press gallery.
And if the judiciary upholds the ban on street soliciting, municipal politicians won't go berserk over the presence of prostitutes in the roads and alleys of their neighbourhoods.
Instead, local governments will cash in on licensing fees that will come in a result of the expansion of the sex trade and the end of prohibition.
According to an analysis of 100 countries' prostitution laws on the ProCon.org website, 50 percent had legalized the selling of sex, including Canada,
In our country, prostitution is legal, but it's illegal to do it in public, live off the avails, or operate a brothel.
Another 39 percent of countries in the survey outlawed all forms of prostitution. And 11 percent, including the United States, have "limited legal prostitution".
Dec 16, 2013 at 3:27pm
I love the photo. I can only imagine the brainstorming that goes on at these stock photo services. "Ladies and gentlemen, we need to expand our selection. Davidson?"
"Uh...more cute cats?"
"You're fired! Nelson?"
"Ch-children with mixed parents...?"
"Hm. Send me a memo. Johnson?"
"You're fired! Blakney? Where's Blakney?"
"Seeing a prostitute."
"Who said that? Wong? You're f - wait a minute. Wait. A. Minute. Yes... yes... prostitutes... excellent... Wong, give yourself a raise. Take a truck and get me those photos tonight!"
Dec 16, 2013 at 3:56pm
Supreme Court always releases on a Friday. However, Smith has a point about just before Christmas.
Should note that the biggest kerfuffle about the avails law will be the claim by the Joy Smith funded NGOs (who always show up crying for the cameras but are actually highly funded, savvy ex-prostitutes who Joy Smith helped through pardons in return for being spokespeople) is the pimping claim. There are pimping laws separate from the avails law. But to be VERY clear, the Court of Appeal said "except in the case of pimping". To be EXTRA clear, they can move the avails law to the presumption law.
Dec 16, 2013 at 4:01pm
Question for journalists: why always lob softball questions at abolitionists and take their claims at face value? They know nothing about the law; throughout the whole Bedford case, they equated the avails law with "THE pimping law" and somehow they were given the treatment Conrad Black gave Rob Ford. Come on, these are sharp, cunning women who use tears for attention whose bills are paid as they've admitted by the church and by the gov't through their NGO funding. Their job is to simply distract from sex workers, so why not ask them tough questions about their claims? All judges so far have stated their "research" about prostitution being violence against women and automatically linked with human trafficking is taking extreme examples and extrapolating to all of society, which is not real research.
Dec 17, 2013 at 10:40am
Make street soliciting illegal and it will go away. That will work.
Always worked in the past.
Rick in Richmond
Dec 17, 2013 at 6:58pm
People get (rightly) upset about those who exploit workers on the green chain, or workers in clothing factories, or in big agriculture. So they should.
But some of them turn a blind eye to those who exploit women engaged in prostitution. They like to pretend that drug addicted sex workers in the DTES somehow possess agency, free will, an actual choice in the matter.
Ask the victims of Willie Pickton just how happy they were to have the 'freedom' to meet him in their line of work. Or anywhere else, for that matter.
Dec 17, 2013 at 10:55pm
The thing is Rick, I don't think it's fair to condemn prostitution by its worse case scenario.
Yes Pickton, long may be burn, long preyed on the sick and undiscriminating, their wills eroded and confused by drugs, ingrained behaviors, and a lack of useful help from peers and families.
But every industry has worst-case scenarios. Rugs are sometimes made with child labour. All kinds of industries still, today, use debt bondage - slavery, in other words.
Even here in BC, I knew a girl whose dad fell into a tank at the poop treatment facility and drowned. That set a standard for me for what is maybe the worst job a person can do. But sewage worker is still a legal occupation.
I'm not oblivious to what you're saying. Sex work seems different than other work because it is sex - it is arguably the most personal act one can do, ideally a sublime act of not inconsiderable spiritual dimension - to commodify it seems like an extremely harsh choice to make.
But, logically, can we take that choice away from people, by putting it behind legal bars and forbidding it? One could argue that, done in an upfront and safe way, that there is no harm in it, other than to dignity, and we don't live in a country where we prevent people from harming their dignity if indeed that is even at stake.
Dec 17, 2013 at 11:39pm
@Rick - That's the whole idea behind the DTES sex worker groups supporting striking down the laws. I don't think anyone would argue that some (probably many) sex workers in the DTES wouldn't choose to be sex workers in a perfect world. But, it's not a perfect world, and criminalizing sex workers is not making them safer. Your example of Robert Pickton brings up a good point - that being, existing prostitution laws do nothing to make sex workers safer.
In fact, the criminalization and stigma sex workers face because of these laws means that in many ways, sex workers exist outside the protections of the law that most Canadians enjoy.
Imagine if sex work had been decriminalized before Pickton. It's hard to imagine that he would have been able to abduct, assault, and murder so many vulnerable women with impunity for so many years if those women would have enjoyed the full protection of the law. Instead, they hid in shadow, were ignored, were criminalized for the work, and Pickton preyed on that.
If the laws are struck down, and it is legal for sex workers to hire security guards, or communicate in public with people who seek to buy sex, rather than hide for fear of criminalization, it seems reasonable to argue that a person seeking to harm women would have a much harder time of it. As a society, we cannot change the past, but the very least we can do to honour the memory of missing and murdered women is to change the future.
Dec 18, 2013 at 8:43am
I think it is pointless speculating on the outcome of the court case at this point. Constitutional cases are legally technically complex. There are two issues here, the court decision, and what happens next.
The decision could be anything from upholding the law to striking all three provisions that are being contested (and not all provisions are) to anything in between. Should the government lose even part of the law it is likely that as before they will move for a stay of effect, so nothing will change.
They will then have to decide whether to accept it or amend the law. If they fail to do so, that opens the door to the provinces and municipalities legislating to regulate sex work. Whatever the decision a lot of people will be unhappy, since this is such a polarising issue that generates more heat than light and more opinions than facts.
There is little political capital for governments in taking a stand on this, but the Harper Government is committed to being tough on crime and will need to align its views with that agenda. To date it has favoured the status quo, and despite some back benchers' opinions is unlikely to radically overhaul the law to meet other ideological positions such as banning the purchase of sex.
Dec 18, 2013 at 9:54am
After people tweeted me complaining about the photo, I inserted a boring image of the Supreme Court of Canada building. The first picture was a campy, almost ridiculous looking image of a guy buying sex. It was so bad that I thought it was funny—almost like performance art. Not everyone got the joke.
Rick in Richmond
Dec 18, 2013 at 2:58pm
Many (perhaps most) progressive women hold the view that prostitution is rape, monetized.
Some men may entertain urbane fantasies about The Happy Hooker. Such women, working in glass towers, constitute the 1% -- at most. A few survive to write novels, memoirs, and advice columns.
For the other 99%, especially in the DTES, prostitution is a life of violence, drug addiction, disease and brevity. It is usually predicted by class. As long as it is fueled by drug addiction, it will continue.
Jennifer's point is better made in its obverse: if the police had been doing their jobs, Willie Pickton would have been trolling empty seas.
The 'civil right' of free trade for prostitutes is trumped by the human right of dignity, self-respect, hope and family for women. Especially in the DTES this means aboriginal women, thrice-victimized by residential schools, addiction, and violence.
Enabling their continued exploitation is no 'right' at all. It is unworthy of us. And of them.