While the Ontario Court of Appeal’s March 26 decision to legalize brothels is a landmark ruling that will make life safer for many sex workers, it does little to support those who still work on the streets, say sex-work advocates.
The ruling also failed to remove the indecency clause, a provision of the bawdyhouse law that has historically been used to target gay men.
Five judges ruled on the appeal of a September 2010 Ontario Superior Court decision by Justice Susan Himel, which struck down three Criminal Code provisions related to sex work.
While Ontario’s highest court agreed with Himel on two provisions, striking down the bawdyhouse law as it relates to sex work and modifying a law that makes it illegal to live off the avails of sex work, three of the five judges chose to uphold a law that governs communication for the purposes of prostitution.
“I do worry about my street colleagues,” commented Valerie Scott, one of three litigants in the case, at a press conference following the decision. “What are they going to do? We have to figure out something to make these women and men safe.”
However, she calls the overall decision a huge victory.
“I would like to thank the Ontario Court of Appeal justices for pretty much declaring sex workers persons today,” said Scott, who has been fighting for sex workers’ rights since the early ’80s. “I didn’t think I would see it in my lifetime, but here we are.”
The court’s overturning of the bawdyhouse law will make it possible to operate indoor sex-work businesses. Meanwhile, the modification of the law concerning living off the avails of prostitution makes it possible to hire employees — including drivers, receptionists and bodyguards — without legal consequences or threat of interference from police.
“The government lost their appeal,” says Terri-Jean Bedford, another litigant. “The laws are changing, and the authorities are now engaged.”
The decision, which is binding in all regions of Ontario, will likely be used as a precedent for other provinces and territories in order to work toward the decriminalization of sex work. Both sides will be allowed to appeal as the court stayed its judgment for 30 days.
Alan Young, who acted as counsel on the case, has indicated that the group will most likely not appeal the decision unless the government does.
Meanwhile, Maggie’s, a Toronto-based advocacy group organized by and for sex workers, released a statement calling the ruling a letdown.
“The anti-prostitution laws work together to jeopardize sex workers’ safety. It is not tenable to have a safe place to see a client if you can’t screen him first or clearly set out what you offer, your rates and your safe-sex requirements,” says Kara Gillies, a long-time sex worker and activist for legal reform. “Further, many street-based workers don’t have access to an indoor place to work.”
Laurentian University professor Gary Kinsman agrees, noting that while the legislation is a step forward for those working in private spaces, it makes life even harder for street sex workers.
“For the bottom rungs of sex workers . . . indigenous women and non-white women, this means that the type of major policing and the sweeps of sex workers will continue to exist,” he says. “It is a very incomplete decision.”
Kinsman also worries about the continued criminalization of communication surrounding sex work. “There is more vulnerability for sex workers,” he says. “You have to do it really rushed and size up whether a client is safe or not. It is the criminalization of speech surrounding a possible activity that hasn’t yet taken place. It is an incredible violation of freedom of speech.”
He says failing to remove the indecency clause in the bawdyhouse provision is another missed opportunity, noting it has been used by police against gay establishments since the mid ’70s, including during the Toronto bathhouse raids of 1981.
Since money is not usually exchanged for sex in gay bathhouses, the “indecent acts” clause has long provided a legal excuse for raids and bawdyhouse charges.
“It goes back to when we were fighting against the bawdyhouse laws,” Kinsman says. “We made it clear we wanted to get rid of the section as a whole.”
The case has come at a time when at least two major Canadian cities are changing how they police sex work.
In Vancouver, a draft policy proposing new policing guidelines was put to the police board on March 21. It would “increase the safety of the workers, reduce victimization and violence and, where appropriate (such as with children and teens), assist with exit strategies.”
The policy calls for the appointment of a sex-industry liaison officer in cases involving sex workers and for limiting invasive enforcement such as street sweeps to situations deemed “high risk” due to human trafficking, violence or the involvement of sexually exploited children or youth.
The Vancouver Police Department (VPD) has explicitly stated that invasive enforcement of sex-work laws is now seen as a “last resort.”
“The VPD does not seek to increase the inherent dangers faced by sex trade workers, especially survival sex workers,” says a report by the VPD deputy chief, Warren Lemcke.
According to the draft policy document, the VPD would also “monitor and maintain intelligence reports to identify and track potentially violent sex industry consumers, exploitive abusers, identify trends and assist in day-to-day operational planning.”
Meanwhile, the Ottawa Police Service (OPS) has also been altering its approach to sex workers following a Dec 9, 2011, announcement of a “pattern of violence” and string of homicides involving sex workers. OPS Chief Charles Bordeleau, however, says he is not willing to commit to a policy that would end sweeps or other invasive strategies.
“We are in the process of assessing and evaluating the Court of Appeal decision, but with respect to the prostitution sweeps themselves, we will continue our current practice of only conducting them when we have a number of complaints where we need to be responsive to our community,” Brodeleau says. “[Sweeps] are not our primary focus; they’re not our primary activity. We will continue to work with sex-trade workers . . . to ensure we can better collaborate together.”
The government has 12 months to make changes to the laws that have been amended as a result of the case.
With files from Andrea Houston and Danny Glenwright.
Below is a video of Alan Young’s reaction, shot by reporter Andrea Houston.