Prostitution is legal in Canada. There are no laws prohibiting the sale of sex.
However, criminal prohibitions on bawdy houses (such as brothels), living on the avails of prostitution, and communicating in public for the purposes of prostitution make almost all forms of sex work illegal. Out-call work, where sex workers meet clients in their homes or hotel rooms, is considered the only form sex work that escapes these provisions.
On June 13, 2013, the Supreme Court of Canada will hear the latest challenge to the country’s sex work laws. The women behind the challenge — current and former sex workers intending on returning to the trade — argue that these criminal prohibitions deprive them of their right to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. Rather than protecting women from the harms associated with the sex trade, the existing laws, it is said, do the opposite. They prevent sex workers from taking steps necessary to ensure their safety and security.
The failure to criminalize sex work itself has raised questions regarding the government’s objective behind current sex work laws. On their face, Canadian sex work laws seem to be focused on reducing or abolishing prostitution. However, the courts have rejected this characterization in light Parliament’s deliberate decision not to make the practice itself illegal. Instead, courts have held that Canada’s sex work laws are designed to prevent public nuisances, such as street solicitation, and more importantly, the exploitation of vulnerable women.
While it may have been considered appropriate in the past for the state to involve itself in the private sexual affairs of consenting adults, this is no longer the case. Canadians no longer consider the government imposing sexual morality on the public a legitimate state objective. Sexual autonomy has become an inviolable right of all persons.
However, public nuisance concerns and protection against the risks that emanate from sex work remain legitimate state objectives. In this regard, sex work laws have largely failed to live up to their purpose. The personal and societal harms these laws create are vastly disproportionate to the objectives they pursue. By prohibiting sex workers from using indoor locations such as their residence, hiring assistants and security, and adequately screening potential clients, they are prevented from taking reasonable steps to ensure their safety, and in certain instances, are forced into exploitative relationships. There is perhaps no more gruesome illustration of the dangers of these laws than the crimes of Robert Pickton, who methodically preyed on sex workers from Vancouver’s Downtown Eastside.
This was the view of the law taken by the Ontario Court of Appeal back in March of 2012. In that decision
, the Court was unanimous in declaring the laws prohibiting bawdy houses and living on the avails of prostitution unconstitutional. To remedy the problem, the Court “read out” references to prostitution in the bawdy house provision, and circumscribed the living on the avails provision so as to only apply “in circumstances of exploitation”. If a manager or bodyguard was earning a living from revenues generated by sex workers and those sex workers were not operating in a state of exploitation, then the business arrangement would no longer run afoul of the law.
Interestingly, the Court—with the exception of one dissenting opinion—did not find the communication provision unconstitutional. This provision, it is argued, stunts a sex worker’s ability to adequately screen clients, thereby exposing the sex worker to undue risk. However, the Court was not satisfied, based on the evidence before it, that the communication prohibition was a “dominant, or even a significant, factor among the many social, economic, personal and cultural factors that combine to place survival sex workers at significant risk on the street.”
The Supreme Court has, as it usually does, a challenging job before it. The Ontario Court of Appeal is one of Canada’s most highly regarded appellate courts and it has again produced a well-reasoned, highly detailed and thorough treatment of the law that spans nearly one hundred pages. One problem, however, that may trouble the Supremes is the Court of Appeal’s conclusion with respect to the public communication provision. With a strongly written dissent from a highly regarded judge, expect the issue to occupy considerable space in the eventual Supreme Court judgment.
What makes the Supreme Court’s task all the more difficult is that it must grapple with yet another difficult social question. Just like abortion, euthanasia and same-sex marriage before it, the Bedford case will invariably polarize some elements of Canadian society. Despite one’s moral qualms about the practice of prostitution, the fact remains that, until Parliament decides otherwise, it is a lawful enterprise. While we can wrangle over where the line should be drawn when it comes to legitimately regulating public nuisance, the law should most certainly not cause harm to the very constituency it purports to safeguard.
Avnish Nanda and Stephen Neil are J.D. Candidates at Osgoode Hall Law School in Toronto, Ontario. Avnish currently works at a law firm in Calgary and Stephen at a law firm in downtown Toronto.