Canada’s Supreme Court has ruled that the country’s ban on brothels is illegal, a landmark ruling that raises important questions for lawmakers, and for women’s rights as a whole.
In a unanimous decision, Canada’s top court overturned the country’s longstanding constraints on prostitution activity, saying that the laws regulating sex work are too sweeping. While Canada has allowed for prostitution, it expressly prohibited brothels, banned public communication with potential or returning clients, and made it an offense to live off the profits that were earned through sex work.
The case was brought by a number of women, Amy Lebovitch, Terri-Jean Bedford and Valerie Scott, who challenged that these restrictions endangered sex workers by forcing them out of brothels and onto the streets, and violated their rights by unduly restricting their freedom.
The Supreme Court agreed with an Ontario appeals court in siding with the women and decided that the restrictions in Canada’s current prostitution law are indeed overly broad. Writing for the Court, Chief Justice Beverley McLachlin said that:
Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.
The prohibitions at issue do not merely impose conditions on how prostitutes operate.
They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.
You might think this would mean that sex work is now legal in Canada, but that’s not correct. The Supreme Court has given Canada’s lawmakers a year to decide on and pass new legislation that addresses these concerns.
Some legal analysts have already said they find it unlikely that lawmakers will pass up this chance for policy making. As such, it remains a question of whether Canada’s parliament will try for the tightest restrictions it possibly can, or whether it will open a genuine debate and listen to the concerns and needs of sex workers.
On that matter, plaintiff in the case Terri Jean Bedford has some opinions. She is quoted as telling CTV News:
“First of all, they have to take consenting adults into consideration. What we can and cannot do in the privacy of our home with another consenting adult for money or not,” Bedford said.
“Then they have to outline what a sex act is. And then draft laws that are fair and right, and that don’t put people in harm’s way, maim or kill them.”
Canada’s conservative federal government is said to be disappointed by the ruling, having defended the current laws as a means of protecting the individual and wider society from the so-called nuisance of sex work, and is assessing what they’ve termed a “very complex matter.” Individual ministers have been somewhat more forthcoming with their opinions, with Justice Minister Peter MacKay saying he would ensure that the law “continues to address the significant harms that flow from prostitution.”
That’s all well and good — there is plenty of evidence that unfettered sex work is dangerous because it leaves women highly vulnerable and open to exploitation — but treating women themselves as criminals and legislating from a view of moral disapproval of sex work only serves to endanger such women further.
Not only that, but it takes for granted that sex work must necessarily hinge on the exploitation of the party selling their wears. Is this necessarily so? Not always. While it is important to stress that there are a great many women who, through a variety of reasons, have found themselves in sex work and would wish to get out of it, there are those who do choose to be sex workers (though, again, it’s not a black and white choice: is sex work the best of a bad set of options, for instance).
We might say this is quibbling over semantics, but the difference matters. How are we going to target the appropriate services for these women, for instance help getting out of prostitution or helping with the underlying causes of their falling into prostitution (poverty, homelessness, drug abuse, domestic abuse), if the laws by which the industry is regulated treat them all the same, as criminals?
Some commentators have advocated the Nordic Model, which Sweden and other nations have used to decriminalize sex work while making paying for sex a crime. The idea is to shift the criminality from the women involved and place it on the men looking to pay for sex. There is some evidence that this appears to cut prostitution and sex trafficking, with many advocates pointing to the fact that Sweden’s records show sex work has virtually disappeared.
However, other campaigners argue that it really is just another ban that could harm the women involved: targeting the men who pay for sex will make sex work just as high risk, and potentially put women in danger by forcing them to meet men in “secret” locations, leading them into potentially hazardous situations with their male clients that could leave them vulnerable. Those opposed to the Nordic Model also say it acts as a smokescreen and that it fails to give an accurate reflection of the true state of sex work in the country.
As are many states in Europe, Canada is now faced with an important task that will test its mettle: legislating to meet the challenges that prostitution throws up without feeling the temptation to simply give in to morality policing. This will be hard given the strong religious conservative presence in Canada’s lawmaking chamber, but it is vital for the country that lawmakers take this issue seriously, factually and with no little amount of empathy. Some women’s lives might even depend on it.
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