Striking Laws for Sex Work

Current Law Violate the Charter: Ontario Court

An Ontario Superior Court Justice struck down three Canadian prostitution laws on Sept. 28, deeming them a violation of the Canadian Charter of Rights and Freedoms.

Challenging Section 210, 212 and 213 of the Criminal Code of Canada, two sex workers and a professional dominatrix made the case that the current prostitute laws violate Section 7—the right to security of the person—as enshrined in the Charter.

“The conclusion I have reached is that three provisions of the Criminal Code that seek to address facets of prostitution […] are not in accord with the principles of fundamental justice and must be struck down,” wrote Ontario Superior Court Justice Susan Himel in her 133-page ruling. “The applicants’ case is based on the proposition that the provisions prevent prostitutes from conducting their lawful business in a safe environment.”
Federal laws prevented the operation of a common bawdy-house, communication for purposes of prostitution and living off of the avails of prostitution. Those laws were recognized as necessary to ensure the protection of those who exchange sex for money—a legal trade in Canada.
Just as soon as the ruling was heralded as an “emancipation day for sex-trade workers,” by Terri-Jean Bedford, the professional dominatrix who brought the case to court in October 2009, the federal government called for an appeal on the decision to decriminalize prostitution. The law change has 30 days to take effect.

“The Government is very concerned,” said federal Justice Minister Rob Nicholson following the decision on Sept. 28. “We will fight to ensure that the criminal law continues to address the significant harms that flow from prostitution to both communities and the prostitutes themselves, along with other vulnerable persons.”

When asked for further comment, Status of Women Canada told The Link, “we’re going with the government of Canada’s position.”
With the inevitable federal appeal, many estimate that the final decision is at least five years away. In the meantime, plenty of headline-grabbing rhetoric from respondents has been garnering media attention.

One Conservative MP from Winnipeg said that changing these laws would make our nation “a pimp,” while the Catholic Civil Rights league—an organization that was allowed to intervene in the trial as a “Friend to the court”—argued that, “prostitution is immoral and should be stigmatized […] These sensibilities are fundamental social values, rooted in Charter values.”

Despite the backlash and moralizing sound bites, many sex work advocates believe the decision is crucial to addressing the reality of workers and the importance of understanding prostitution law from a labour rights perspective.

“The analysis has been great for us,” said Pascale Robitaille, an outreach team coordinator from Stella Montreal, a local sex-work organization. “It finally is linking the laws that prevent sex workers from [accessing] things that could be useful for their own safety to the violence they experience.”
Throwing out the criminal prostitution laws—which legally limited workers’ abilities to hire a chauffeur, receptionist or body guard to receive clients in homes or hotels, or to negotiate prices and services—will help make sex work safer, she added.

Contrary to the general criticism of the verdict, the expert evidence in the official ruling—which detailed the nature and violence of prostitution in Canada—also shed light on some of the many misconceptions of the sex trade, specifically “[challenging] the notion of the prostitute as a victim,” and the “mythology of the pimp,” which are “rooted in racial and sexual bias.”

This article originally appeared in Volume 31, Issue 08, published October 5, 2010.