Terri-Jean Bedford raises her riding crop in victory.
Next to her on the floor of the Supreme Court, her legal troubadour, Alan Young, puts on a serious face amid the jubilation:
“Now the political battle begins.”
He was wrong. Instead of a political battle following the Supreme Court of Canada’s overturning of the country’s prostitution laws, there’s been a tactical retreat. Whenever a debate on the matter arises, it’s shooed away and hushed.
The Conservative government has until the fall to get a bill together, lest it subject Canada to the moral oblivion of having sex workers operate freely and without fear of prosecution.
The government has already punted the law farther down the road, by way of opening a public consultation on the matter, packed with questions that suggest that this government already has the answer.
There’s no great rush for the Conservatives to act, however, as the opposition is twiddling its thumbs.
The Liberals and New Democrats have avoided efforts from their membership to bring the conversation to the forefront.
The clock is ticking. On Dec 20, 2014, sex work will be decriminalized outright.
The government has been emphatic: that is not an option.
The Harper government’s opposition to overturning Canada’s traditional prostitution laws is hardly a secret.
Ottawa’s legal team went to bat for the status quo in Bedford v Canada with expected fervour, but the political posturing on preventing the fall of those laws was particularly spirited.
The government’s initial delusion on the issue gave way as legal consensus crystallized: the Supreme Court would be taking a sledgehammer to the way the government currently regulates the selling of sex.
Once realization crept over the party, a new dominant internal lobby emerged, giving the Conservatives sure footing when it comes to regulating sex. The new moral conscience of the Conservatives? The Swedes.
The so-called Nordic model had long been batted about by subsections of the feminist community in Canada (the “abolitionists”), but the idea never went anywhere. Both the NDP and Liberals, in previous years, shirked the Nordic model in favour of some synthesis of decriminalization and legalization. The Conservatives, meanwhile, wrapped themselves in the status quo.
But as the Supreme Court ruling inched closer, and loomed heavily on the Conservatives’ 2013 Convention in Calgary, the party came to a quick decision — if the laws falls, Canada ought to go Nordic. “We shall develop a Canada specific plan to target the purchasers of sex and human trafficking markets through criminalizing the purchase of sex as well as the acts of any third party attempting to profit from the purchase of sex,” the resolution states.
That consensus has congealed in subsequent months. I asked one well-placed caucus source whether, given the small contingent of libertarians in the government, there was much support for decriminalization. No, I was told; it’s Nordic supporters all the way down.
Justice Minister Peter MacKay nevertheless opened the question to the public, by way of an online consultation. Question number one? “Do you think that purchasing sexual services from an adult should be a criminal offence? Should there be any exceptions? Please explain.”
A spokesperson for the minister of justice confirmed that the ministry recently held public consultations but refused to give any details about who was invited. Another contact who was aware of the consultations said that 16 representatives were invited for the short discussions, but organizers did not take minutes at the meeting.
Sex-work groups are clamouring for more of a debate, as well they should.
The Nordic model
The Nordic model, in and of itself, is a misnomer. The Swedes were the first to criminalize the purchasing of sex, in 1999, with Norway and Iceland following suit in 2008 and 2009, respectively.
In Denmark, where the trade is legal and sex workers pay taxes, and Finland, where sex work is legal if it is in private, there appears to be little appetite for adopting the so-called Nordic model.
Studies on the laws of Sweden, Iceland and Norway are spotty, and sex-work advocates often take issue with them.
Part of the trouble is that it is a struggle to find opponents to the laws. While in Iceland recently, I sat down with Katrín Jakobsdóttir, the leader of the country’s Left-Green Movement, in the party’s Reykjavik office. Her leftwing party, part of a governing coalition prior to the last election, turned the policy into law. She explained the three reasons her party supports criminalizing the sex trade: it’s not necessary, given Iceland’s egalitarian economy; it’s not in keeping with Iceland’s strong drive for the equality of men and women; and it’s not an Icelandic profession. Both the moderates and the rightwing parties hold virtually identical positions.
In other words: this is a Nordic solution.
For one, Iceland has only ever known a few dozen, at most a couple of hundred, sex workers, according to Jakobsdóttir — many of them immigrants from other parts of the European Union. (As one Canadian whispered to me over a long oak table in a Reykjavik bar of Iceland’s focus on foreign sex workers, “It’s racist.”) Abolishing sex work would, at least through the eyes of many Icelanders, pose no greater peril for their citizens than eliminating pornography — something the Icelandic government has also tried to do.
Sweden and Norway are not dissimilar cases. Sweden laid 770 charges against johns in 2010, amid a $7 million government campaign. Canada, in any given year, may lay anywhere from 5,000 to 10,000 charges. Studies done there suggest that a good number of the female sex workers are migrant workers, while a large proportion of sex workers are, in fact, men. The Swedish system, seemingly, does not target ‘“janes” (female clients of sex workers).
Dominant political support for the model in those countries, thanks in no small part to a lack of sex-worker organizations, has made it look palatable worldwide.
Terri-Jean Bedford, the titular head of the bevy of Canadian sex-worker organizations, rails against the Nordic model in her blog.
“Those of us who worked to strike down the laws know that this approach drives prostitution underground because the girls do not want to lose business,”she writes. “The only argument for making prostitution, whatever that is, illegal, are moral arguments. Such arguments have no place in a free country and those who make them should be ashamed of themselves.”
Luckily, we have an effective political opposition to ensure that any legislative effort is sussed out and analyzed.
The Liberals and NDP
History repeats itself.
I was sitting at a different end of the room, but the rug was the same.
At the NDP’s 2013 convention, it was Deputy Leader Libby Davies who walked out with the broom to sweep away a pesky proposal from status of women critic and Manitoba MP Niki Ashton.
Ashton stood to support a resolution, crafted with the help of sex workers from Vancouver’s Downtown Eastside, that read, “Be it further resolved that we, the NDP, do not support the enactment of legislation that prohibits the purchase or sale of sexual services or sex workers’ ability to work with others.”
A sex worker joined Ashton at the microphone to support the resolution, which codified the long-held NDP position that sex work should be decriminalized. That position has, for a decade, been lauded by Davies, MP for the high-traffic area of Vancouver East. Taking the temperature of the floor, there was support.
So when Davies took to the microphone, it was assumed that she’d drive the point home. Instead, she referred the motion to the party’s Federal Council — the euphemistic equivalent to “behind the woodshed.” She said more work needed to be done on the bill.
I requested an interview with Ashton after the resolution’s defeat. It was accepted, but I never heard from her.
What eventually came out of the federal council is not policy — it is a statement of principle. It contained the same key passage, calling for decriminalization, but it has not been made public, nor does it necessarily direct the party’s position on the issue.
The NDP, in effect, swept the resolution under the rug.
Amazingly, one year later, in the same hall, the Liberals did the same thing.
This time, though, the housekeeping was done ahead of time. The policy — similar to one that the party passed at a similar convention — died before it even arrived.
“Be it resolved that [the Liberal Party of Canada] will table to the Parliament of Canada a bill to minimize the persecution of sex trade workers by ensuring that they are legally able to secure all materials and spaces required to run a safe and successful business,” reads the resolution, which further encourages the government to regulate and tax the trade.
The Young Liberals of British Columbia began the process of writing the resolution in 2012, and the broader party in BC adopted it in advance of the February convention. Things were on track to have the policy debated in the open when news broke that the resolution would be coming forward. One news cycle later and it was withdrawn.
One source in the party said that the Young Liberals still support the idea of regulation but that the Supreme Court ruling (which came down in December, two months before the resolution was withdrawn) changed the situation. It will be coming back before the BC wing of the party sometime in the future.
Liberal Leader Justin Trudeau’s team has been noncommittal on the issue when asked.
Trudeau himself almost certainly opposes the policy. When I asked him in advance of his taking over as leader, he said he didn’t support decriminalization and was leaning toward the Nordic model. In interviews earlier this year, he said he considers prostitution itself a form of violence against women.
The need for debate
The NDP and Liberals have bent themselves over backward to demand and pine for “evidence-based policy.”
Yet the second they are put in a situation to debate and consider that policy — like, say, a policy convention — they shrink away, like a teenager trying to insist to his parents that the porn magazine under his bed isn’t his. “I’m just holding it for a friend.”
The fact is, waiting for the government to make up its mind isn’t good enough. The other two parties can’t play hot potato with the issue.
We’ve got to get this right. Hundreds of sex workers have been murdered or reported missing in recent years. Mimicking another country’s laws and opening up an online questionnaire just isn’t good enough.
The take of the Supreme Court has been pretty contrite: criminalizing the sale of sex work is a non-starter. The parties must, therefore, decide whether they want to regulate other aspects of the trade — procurement, purchasing, pimping. Then, they must navigate the jurisdictionally fraught question of who ought be the chief regulator of sex work — the provinces or the cities. Then, the question becomes of enforcement, as to whether the provinces will even bother trying to police the trade. The alternative would be to adopt some sort of national program to manage the business.
Pearl-clutching be damned: the opposition parties need to step up and bring forward a real debate on the issue. Consulting their membership would have been a good first step, and they refused — the Conservatives, on the other hand, had the good sense to do at least that.
This is serious.