I will be updating the Who’s Who in the
Justice Committee testimony regarding Bill C-36, providing more details about
the various organization and individuals and what they argued, as I make my way
through the testimony (which is now available on-line through http://www.parl.gc.ca/CommitteeBusiness/CommitteeMeetings.aspx?Cmte=JUST&Stac=8423877&Language=E&Mode=1&Parl=41&Ses=2).
However, in the meantime I thought it
worthwhile to give some background on prostitution law in Canada. This is based
on chapter 11, of the second edition of mine and Linda White’s book Women, Politics, and Public Policy: The
Political Struggles of Canadian Women and some more recent research.
The most significant feature of Bill
C-36 is that it makes one element of prostitution illegal by criminalizing the
purchase of sex. Currently, it is not illegal to exchange sex for money, i.e.,
prostitution is not illegal. What is illegal are the actions and practices
required to make such an exchange. The communication and negotiation for the purpose
of selling or buying sex is referred to as solicitation.
Historically street walkers were charged
as vagrants and under section 164.1 of the federal Criminal Code. However, in
1970, the Royal Commission on the Status of Women argued that the vagrancy
statute was discriminatory since ‘in addition to being gender-specific, it
exhibited moral condemnation of women while restricting their activities in the
public sphere, permitted the use of arbitrary police power, and stigmatized
women through the acquisition of a criminal record’ (Brock, 83-4). In 1972 the
federal Liberal government repealed all vagrancy laws and made prostitution
itself legal, but it outlawed street solicitation by any person for the purpose
of prostitution (section 195.1 of the federal Criminal Code). Without the
ability to communicate and negotiate an exchange, the law makes it very
difficult to engage in prostitution-related activity and while the law is
formally gender-neutral, in practice the majority of those prosecuted are
women. It is much the same as saying while lemonade is a perfectly legal
product, the act of standing on the road side or setting up a stand to sell
glasses of it for 5 cents is illegal.
In 1978 the Supreme Court, in response
to a challenge to the solicitation law, ruled that the police could no longer
arrest someone for a single proposition of sex but rather the solicitation had
to be pressing and persistent (R. v. Hutt (1978)). It also ruled that a car could
not be considered a public space and therefore communication/solicitation
within a car was not illegal. In response to outcry from community groups,
mayors, and police associations the federal government established the Fraser
Committee (Special Committee on Prostitution and Pornography) to look at the
issue along with debates regarding pornography. This committee recognised that
social and economic factors explain why women engage in sex work and therefore they
should not be prosecuted criminally for it. It also recommended partial
decriminalization of brothels in order to address the issue of unsafe working
conditions and health concerns.
However, the Conservative government of
the time took a harder and more prosecutorial approach outlawing solicitation
on the part of either seller or purchaser and explicitly stating in section
195.1 that a motor vehicle located in a public place or open to public view is
a public space. Specifically, and of relevance to current debates over C-36,
prostitution was framed as one of ‘nuisance’ and damaging to public order;
prostitution produced noise, littering, traffic congestion, it lowered property
values, and made people feel unsafe in their neighbourhoods.
So until December of 2013, the law
regarding prostitution was as follows: It is illegal to communicate for the
purposes of prostitution in a public place (section 213, Criminal Code of
Canada). The definition of a public place can be interpreted broadly to include
not only a public street, but cars or large windows open to public view.
However, this does not mean that prostitution can be undertaken in private
spaces, either. Section 210 of the Criminal Code makes it illegal to keep a
‘common bawdy house’, a location kept or occupied for the purpose of
prostitution. It is also illegal to be an ‘inmate of a common bawdy house’ and
to be found in a common bawdy house without a lawful excuse. Any place
habitually used for prostitution such as a house, apartment, or parking lot can
be considered a bawdy house. Those who aid the exchange by transporting or
directing another to a bawdy house are considered complicit and liable to
criminal sanction. This is the third person element of criminality. As such
persons would be considered to be making a living off the avails of prostitution
and procuring. Section 212 prohibits procuring and living off the avails of
prostitution, with the definition of who is a ‘pimp’ as quite expansive:
“evidence that a person lives with or is habitually in the company of a
prostitute or lives in a common-bawdy house or in a house of assignation is, in
the absence of evidence to the contrary, proof that the person lives on the
avails of prostitution.” This can include roommates, spouses, adult children,
and anyone that a sex worker hired to help manage the business (receptionists,
accountants, etc.) or provide security (bodyguards and bouncers).
As a bit of an aside, the phenomenon of
the illegal bawdy house is greyer than many Canadians realize and there is a
fairly extensive amount of semi-legitimate and legitimate “sex work” that is
undertaken throughout Canada. This seems to have much to do with how ‘sex work’
as opposed to prostitution is defined. Cheryl Auger from the University of
Toronto has done some amazing work looking at various forms of “sex work” and
how they are related to municipal ordinances and regulations. She points out
that “most of the practices associated with prostitution are criminalized yet
municipalities across Canada are quietly collecting licensing fees from
businesses [such as escort services, erotic massage parlours, body rub
parlours, strip-clubs, etc.,] that exist at the margins of federal law.”
Working in such a business can and is considered “sex-work,” but it is not
criminalized in the same way as prostitution. The regulation of such businesses
by municipalities, on the one hand adds a layer of surveillance and policing of
sex workers beyond the Criminal Code, but, on the other hand, it suggests that
sex is a semi-legitimate business and, when licenses and taxes are dutifully
paid, a lucrative revenue source for municipalities. (Pushing this to an
intuitive conclusion it would be interesting to see what would happen if
municipalities were charged with living off the avails of sex work?! Maybe we
should refer to such establishments as ‘uncommon bawdy’ houses?)
This changed in September of 2010, when
Ontario Court Judge Susan Himel ruled that the restriction on the operation of
bawdy house and living off the profits of prostitution and solicitation are
unconstitutional because they violate the right to ‘life, liberty and security
of the person.’ Himel made specific reference to the Fraser Committee report,
pointing to its recommendation that “the adult prostitute be given leeway to
conduct his or her business in privacy and dignity, by moving indoors in small
number in order to protect safety. … [and] adults engaging in prostitution
could and should be counted on to be responsible for themselves, and therefore
should be entitled to give their earning to whomever they wish provided no
coercion or threats were present’ (DiManno, 2010). The Court’s concern was that
‘the law as it stands is currently contributing to the danger faced by
prostitutes,’ and Himel’s ruling was intended to allow prostitutes the ability
to conduct business inside without fear of arrest, fully communicate with and
scan clients, and to hire private security.
It is not surprising that this ruling
was appealed to the Supreme Court by both the Ontario Provincial government and
the federal government. At the time, the Conservative Federal Minister of
Justice, Rob Nicholson stated, ‘it is the position of the government that these
provisions [the original sections of the Criminal Code] are constitutionally
sound … and deter the most harmful and public effects of prostitution”
(Department of Justice Canada, 2010).
However, in December 2013, the Supreme
Court of Canada disagreed with Nicholson and ruled the provisions as not
constitutionally sound and gave the government a year to bring in legislation
and develop a legal framework that would be more in line with the Charter of
Rights and Freedoms. Hence, the introduction of Bill C-36 and the stated
urgency of the federal government to have this passed through the House.
Specifically the Court ruled:
- “the harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health safety and lives of prostitutes. 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.” (para 136)
- “The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (such as controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards.” (para 142)
- “By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condos or safe houses. In these ways, it significantly increases the risk they face.” (para 71)
Fundamentally, the Supreme Court said
that the laws in place regarding communication, bawdy houses, and living off
the avails of prostitution put sex workers in unjustifiable positions of danger
when they engaged in a legal activity. While the laws were put in place to
eradicate prostitution by discouraging sex work the actual outcome was that the
laws caused harm disproportionately to good they were set to accomplish.
On the issue of choice and liberty
(harkening back to the Reference of 1990), the Supreme Court ruled against the
Attorney Generals’ of Canada and Ontario reasoning that the harm is caused not
by the law but because sex workers choose to engage in prostitution. It ruled,
‘a sufficient
causal connection standard does not require that the impugned government action
or laws be the only or the dominant cause of prejudice suffered by the
claimant, and is satisfied by a reasonable inference drawn on a balance of
probabilities’ (para 76).
In this way, the court recognized that
for some, particularly those involved in street prostitution often facing
financial troubles, addiction, mental illness, or caught up in trafficking,
have little to no choice in engaging in prostitution and that they should not
be further victimized by the state law which forced them into a dangerous and
unsafe position. By implication the year given to the government to bring in
new law, is the Court requesting the state develop law which does not continue
to victimize sex workers.
Interesting, Jennifer Koshan (2013),
points out that regarding the issue of choice, “the Supreme Court did not go as
far as the Ontario Court of Appeal did… The Court of Appeal rejected the
implications “that those who chose to engage in the sex trade are for that
reason not worthy of the same constitutional protection.” This for Koshan is a
more principaled reflection of the choice argument than that of the Supreme
Court, which ruled on the factual finding that “the claimants’ actions were not
actually a matter of choice.”
The strength of Bedford v. Attorney General of Canada is that it did not explicitly speak to issues of morality. That is the strength of the law, possibly. However, there is an underlying morality regarding sexuality and victimization that can be read under the ruling which has been very much highlighted in the ensuing legislation, Bill C-36. It has to do with the distinction between the terms ‘prostitution’ and ‘sex work.’ What we see is a clear division between a conception of sex work as a legitimate form of work that can be freely chosen, in many but not all cases, and others who view it as ‘prostitution’ an enforced (through trafficking or lack of opportunity) condition of sexual slavery. The ruling tends to conception of prostitution rather than sex work, as Emily Dixon (2013) closes her review of the ruling with, “we cannot overlook that the Court in Bedford never refers to the applicants, who bravely brought forward their life stories in order to make a revolutionary legal change, as ‘sex workers.’ Instead the Court characterizes them as prostitutes.” Similarly, Brenda Crossman (2014) points out at a panel discussion responding to the Bedford decision, “It casts sex work into the language of harm. It reflect the legal arguments that were made. It reflects the lower courts decisions, where the focus was in how the law harms vulnerable at risk groups … but there is nothing in the decision about sexual autonomy.”
Jennifer Koshan (2013), takes exception to the Supreme Court’s statement that it “might have rejected any claim of a positive right to vocational safety.” This clearly arises from a conception of ‘prostitution’ rather than ‘sex work.’ To view it as sex work opens up it up to being viewed as a form of labour where the health and safety of those engaged in it could be looked after through general public policy or in particular through occupational health and safety regulations. It is for this reason the World Health Organization and UNHIV/AIDS use the term ‘sex work.’ It is ironic that the ruling centers on the conception of “security of the person,” yet the way the work is viewed does not allow for the acceptance of regulating health and safety.
Ironic, yes, but surprising, no, because after Bedford we are still left with a dual category of women (granted not all sex workers are women) framed as the acceptable victim, an at risk, vulnerable women or girl (I suspect trans or queers are not included in this category) who has been “prostituted” or “trafficked” versus the sexual deviant outlaw, sexually autonomous woman who has chosen to provide commodified sexual services.
It is a step forward that after Bedford we are concerned with those, who have no choice because of context or trafficking to engage in the sex trade, but it appears there is still a continued moral discomfort towards those who are not or do not see themselves as victims. We see this all over Bill C-36 and to a degree it arises out of the Bedford ruling, this group still continue to be excluded from full community membership and all its rights and protections.
Further Reading and Sources Used:
- Cheryl Auger. 2010. ‘Criminalized and licensed. Local politics and the regulation of sex work among consenting adults.’ Paper presented to the Western Political Science Association. San Francisco, California, 3 April 2010.
- Deborah Brock. 2000. ‘Victim, nuisance, fallen women, outlaw, worker? Making the identity “prostitute” in Canadian criminal law.’ In Dorothy Chunn and Dany Lacombe (Eds), Law as a gendering practice, 79-99. Don Mills, ON: Oxford University Press.
- Brenda Cossman. 2014. Cited in ‘After Bedford v. Canada: sex trade panel draws crowds, protestors and passionate debate.’ University of Toronto Faculty of Law. February 17, 2014. www.law.utoronto.ca/news/after_bedfort_v_Canada_sex_trade_panels_draws_crowds_protestors/
- Department of Justice. 2010. ‘Statement by Justice Minister Rob Nicholson following the Ontario Court of Appeal Stay Decision on the Bedford Prostitution Challenge.’ December 2, 2010. http://www.justice.gc.ca/eng/news-nouv/nr-cp/2010/doc_32579.html
- Rosie DiManno. 2010. ‘sexual anarchy does not await.’ Toronto Star. Sunday 28 November 2010.
- Emily Dixon. 2013. Bedford A Significant but Cautious Victory. Slaw. http://www.slaw.ca/2013/12/22/bedford-a-significant-but-cautious-victory/
- Jennifer Koshan. 2013. ‘Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision,’ The University of Calgary Faculty of Law Blog. Dec. 24, 2013. http://www.ablawg.ca
- Jacquetta Newman and Linda White. 2012. Women, Politics, and Public Policy: The Political Struggles of Canadian Women. Don Mill, ON: Oxford University Press Canada.
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