4 min

Sex work laws head to Supreme Court

Lawyer worries government could move to criminalize sex work

Credit: Andrea Houston (file photo)

The Supreme Court of Canada now has the opportunity to repeal three key prostitution laws, a decision that will affect every municipality in the country.

But those close to the case worry about a political curve ball: the potential that the federal Conservatives will decide to make sex work illegal in Canada.

For the past six years, lawyer and Osgoode Hall professor Alan Young has represented sex workers Terri-Jean Bedford, Amy Lebovitch and Valerie Scott. The three women are challenging the laws that criminalize sex work in Canada.

“We now have the opportunity to put the final nail in the coffin,” Young says.

After news came that the case had been given the green light Oct 25, Bedford says she is excited to open up the debate to the entire country.

“I think this will be an election issue,” she says. “It’s time to take all the skeletons out of the closet and stop the fear-mongering. Women are having sex everywhere, everyday, Christian women, all women, some even for money. Just because money exchanges hands doesn’t make her a criminal.”

Sex workers are fighting back, she says. “We don’t need their morals; we need our rights, protections and freedoms.”

Young wasn’t at all surprised that Canada’s top court will hear the case. He says it is “inevitable.”

“It clearly meets the national importance criteria. It involves a controversial issue of public policy,” he says. “At a pragmatic level, you can’t have a case of this nature be binding under just one province.”

In 2010, Ontario Justice Susan Himel struck down three key anti-prostitution laws that create hazardous working conditions for sex workers — laws against communicating for the purposes of prostitution, keeping a common bawdyhouse and living on the avails of the trade. Himel ruled that the laws make prostitution more dangerous.

But in March, Ontario’s highest court chose to uphold the law that governs communication for the purposes of prostitution, which sex-work advocates say does little to support those who still work on the streets. Young appealed that decision.

Now, the Supreme Court of Canada has decided to hear the cross-appeal, a decision Nikki Thomas, of the Sex Professionals of Canada, says is critical.

“This will finally lend some clarity as to what means we can take to protect ourselves when we are engaging in a legal profession,” she says. “There is no other legal profession in Canada that is restricted the way that sex work is. There is no other profession that has laws dictating how people can and can not work. There is no other profession that has a law preventing provider and client from talking.”

A key piece of Young’s argument is that sex workers have a fundamental right to safety. Making it legal for them to move indoors and off the street is the clearest and most obvious way to achieve that.

“Giving people access to move indoors will make it safer,” he says. “I believe that beyond a shadow of a doubt.”

Once the laws change in each province, it will then be up to municipalities to create safe, low-rent, indoor establishments for sex workers. Young says public perception of brothels is widely misunderstood, often distorted by those at the municipal level painting a disparaging image of sex work, such as Toronto Councillor Giorgio Mammoliti, who has advocated for a red-light district.

[City councillors] are kind of confused and often juvenile in their approach to it,” Young says. “They’re going to have to confront this issue in a serious way. The solution is not to reenact Prohibition, but to move to a regulated industry with a local option . . .  Mammoliti and all these people are going to have to get more serious when they talk about [sex work].”

Young suspects the case could be heard in the Supreme Court by the end of next year. He also anticipates that a vast number of intervenors will be involved.

“At this level, the attorney general in every province has the option of intervening, and I’m quite certain most of them will show up,” he says.

The larger political debate that will unfold across the country remains to be seen, he says. “It’s really unsettling that, if things happen quickly, it will be the Harper government that will be the institution responding. To put it bluntly, their approach to criminal justice borders on ignorance.”

The worst-case scenario is broad criminalization. With a Conservative government in charge also comes the reality that sex work could become illegal, he says.

“When you get to the second round, the political response, that’s one of the options that will be available, and that’s one of the options that are being pursued in some Scandinavian countries,” Young says. “But it’s asymmetrical, in that it only applies to the males purchasing sex. So it is an option [for the federal government].”

Young says that’s the “weak link in the chain.” His entire argument is predicated on the fact that selling sex is legal in Canada.

Young says a large segment of the general public is likely to feel more comfortable dismissing the safety risk knowing that the people getting hurt are doing an illegal activity.

“So, the government may say, ‘Hey, if we just make [sex work] criminal — or do it the Swedish way, asymmetrically — the irrationality of the law disappears.’ It allows the government to argue, ‘Sure you’re at risk, but you shouldn’t be doing it in the first place. You have assumed the risk by conducting yourself illegally.’ That’s an argument that might have sway.”

That allows the general public to say, “Don’t be a criminal,” he says. “That’s a really pedestrian response, but it has emotional impact.”