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Legal challenge: Making sex work safer

Constitutional challenge aims to decriminalize sex work

If prostitution is legal in Canada, then why are there federal laws on the books that not only criminalize actions related to the business of prostitution, but also contribute to unsafe working conditions for sex workers?

That question is at the heart of a constitutional challenge launched this month seeking to strike down three separate provisions of the Criminal Code.

“Sex work is a legitimate business, so it’s important that we be treated in a legitimate way,” says Valerie Scott, executive director of Sex Professionals Of Canada. “We need and deserve to be able to work in safe conditions.”

The three provisions being challenged prohibit keeping a common bawdy house, living off the avails of prostitution and communicating for the purpose of prostitution. The challenge, filed in the Ontario Superior Court Of Justice on Mar 21, argues that the provisions violate the Charter Of Rights And Freedoms, depriving sex workers of “their right to liberty and security in a manner that is not in accordance with the principles of fundamental justice.”

Scott launched the constitutional challenge along with Amy Lebovitch, a current sex worker, and Terri Jean Bedford, a former dominatrix who’s fought the laws in court before, on behalf of all sex workers in Canada.

“The government has clearly said that prostitution is a legal enterprise, so why not afford sex work the same protections as any other legal enterprise?” asks Amit Thakore, a member of the pro bono legal team representing the sex workers. The legal team is being led by Alan Young, a professor of law at York University’s Osgoode Hall Law School.

According to Scott, one of the most harmful laws regarding sex work has been the so-called “communication law,” which essentially ended the practice of street prostitutes working in groups of two or three. Under this “buddy system,” when a sex worker went into a car, their buddy would see the john’s face and write down the plate number as a safety precaution.

“This was an excellent way of preventing violence,” says Scott. “But now, if you work in groups of two or three, you are a magnet for being busted. So now you have to work alone in dark, out-of-the-way places where no one knows who you are or who you are with.”

Both Scott and Thakore point to the ongoing trial of Robert Pickton in BC as evidence of the unsafe nature of sex work in Canada today.

“We don’t have the death penalty for prostitutes in Canada, but we have a de facto death penalty,” says Scott, “and Robert Pickton is allegedly one of our executioners.”

If the courts ultimately strike down the contentious provisions, prostitution would be decriminalized and sex workers would be allowed to work indoors legally, says Scott.

“We could set up brothels with three, four women, a receptionist,” says Scott. “It would prevent a lot of violence.”

Scott notes the difference between legalization of sex work —which treats prostitution as a vice to be controlled — and decriminalization — which treats it as a legitimate business. Only two places in the world have decriminalized sex work — New South Wales in Australia and New Zealand.

Although Scott is passionate about these issues, she says she’s not looking forward to reopening the moral debate surrounding sex work.

“I’m so tired and bored of it. If prostitution is legal in Canada, why is there even still a moral debate?”

She is also concerned that “prohibitionists” will try to argue that overturning the three provisions being challenged will lead to an increase in child prostitution and pimping. But Thakore says the case does not deal with these issues.

“We don’t want to create a free-for-all for pimps and child predators. We were very careful [in writing our challenge]. We don’t even come close to dealing with youth prostitution. And frankly, those laws should be enforced more regularly than they currently are.”

Thakore says she’s optimistic about the case, which is expected to be heard in the next 12 to 16 months.

“I think we have a very strong case.”