Christmas came early for Canada's sex workers in a landmark ruling from the Supreme Court of Canada that paves the way for a very Dutch-like system of legalized prostitution. It's also a victory for all the social libertarians out there, and it re-inspires the belief that Canada is a haven of progressive ideals. Still, is this situation as entirely cut and dry as it seems? Are we just one short year away from red light districts in every major city, or is our current crime conscious Federal government going to put the kibosh on that idea?
The matter of law, for now, seems rather cut and dry. In a paradoxical fact of legal procedure, actual prostitution, that is to say accepting money in exchange for sex, wasn't illegal. What is, or rather was, illegal are activities associated with prostitution, meaning the operation of bordellos, support services for prostitutes like security and management, as well as communicating the fact that one is a prostitute and available to offer sex for money.
It's those three things in specific that the Supreme Court struck down today in a 9-0 decision, an Ontario Court of Appeal ruling last year struck down those same laws, and the Supreme Court this morning upheld that ruling. The court said that laws barring the keeping a brothel, living on the avails of prostitution, and communicating in public for purposes of prostitution "do not pass Charter muster." Since sex work is basically legal, the laws make it difficult for those workers to do their job safely and with the protections of the system.
"[T]he regulation of prostitution is a complex and delicate matter," Chief Justice Beverley McLachlin wrote, adding that it "will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime."
For the law and order government of Stephen Harper, this is going to be problematic.
"We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons," Justice Minister Peter MacKay said in a statement.
“The government is saying today we are going to review the decision and we’re going to come up with some options to ensure that the criminal law continues to fight against harm against our communities because of prostitution," added Minister of Canadian Heritage Shelly Glover while talking to reporters in Winnipeg. "Harm against the women and the children who are exploited, harm against those who witness these atrocities. I hope that we can get it done as quickly as possible,” she said.
Glover, who was also a Winnipeg Police Officer, added that the Supreme Court has taken away tools that were key for police forces to help get exploited women out of the sex trade.“I’ve seen the plight of women being victimized, abused and mistreated and I saw it when I was undercover working to unravel abusive and exploitative prostitution rings,” she said. "How on earth are we going to find those women who are being exploited? That’s my biggest concern.”
Though Glover is concerned, a 9-0 decision from the Supreme Court is nothing to sneeze at, a fairly decisive verdict on the country's prostitution laws as they currently stand. And despite the doom-saying from the Federal government, many women who are currently, or have been once, involved in the business of sex, say that this is very good news for them.
"I would like to thank the Supreme Court of Canada for declaring sex workers to be persons," said former prostitute Valerie Scott, one of the applicants in the case. "This is the first time in Canadian history that sex workers are truly persons, we are truly citizens of this country. And now we can work in our legal occupation in a legal manner. This is the best decision I have ever had in my life."
“What the court did today was look at the case in a very different way than they did 20 years ago," explained Katrina Pacey, one of the litigators of the case. "It was a question of liberty at that point and today it was a question of security, it was a question of safety, it was a question of keeping women alive. The court says very clearly that if these laws prevent sex workers from being able to take steps like screening clients, if these laws prevent sex workers from stopping getting into a vehicle with someone like Robert Pickton, then they must be struck down.”
Good points all, but now what happens? First of all, don't expect to be able to walk into a rub 'n tug tomorrow with impunity. The government has a year to address the matter and come up new laws to govern prostitution in Canada, and there seems to be three options the country can take on the matter according to a CBC article. On the one hand, the Federal government could decide to outright ban the sale of sex, in effect outlawing prostitution itself and thus insuring a stricter version of the status quo. Option two would mean that the Feds could pass laws to regulate "where and under what circumstances prostitution can occur," following one of several models employed throughout Europe and other jurisdictions that have legal prostitution. If all else fails, the buck could just be passed to the provinces and it would be up to local governments to decide what they want to do with prostitution.
It will be interesting to see what direction Canada and our government proceeds in after this decision. It might be the best course to consider the regulation option, to once and for all protect sex workers by creating a system to manage sex workers, see to their safety, give them opportunities to leave the business, and, yes, develop ways to tax the service and collect revenues from it like any other vice. Failing that, they could let the provinces do the same. Canada doesn't need to become a red light free-for-all, nor do I think it would be, but the argument could be made that it is better for the government to get out front and lay the groundwork for this new system now and in the process open up potential new revenue tools in these cash-strapped times. (Didn't Jim Flaherty just say that the economy was "too fragile" to justify a CPP increase?)
The other, more draconian option, and the one the current Federal government is more likely to take, is to re-write the prostitution laws and make it explicitly illegal to ask for and accept money in exchange for sex. The Harper government's law and order agenda has flown in the face of statistics and research on the handling of crime, instead believing that more jail/more often is the only answer, even if the question is why are we so gung-ho about this subject if rates of violent crime are going down? For the Conservatives, this Supreme Court ruling maybe too hot to handle in a time when they need to fire up the base, and to that end the only answer is that sex workers are criminals, those that use their services or aid in the provision of those services are criminals, and thus they should all go to jail.
Pragmatically though, is it not time to admit that people have been using sex workers for their pleasure regardless of the legal status for centuries? Should we concede that criminalization breeds more crime and that pimps and madams probably wouldn't bother with the business if business meant they had to fill out T4s and CPP info, and pay their workers a decent wage? And don't we have to concede also that as society gets more secular, as it seems to be, that old-fashioned morals about sex work may give way to the pragmatic view of the world that says people will see hookers for sex, so the government might as well get a little piece of the action. So to speak. We're only delaying the inevitable.
Incidentally, if you want a compelling argument for the legalization of prostitution, check out a National Film Board documentary called Who Cares? Directed by Rosie Dransfeld, it's about sex workers in Edmonton and the real dangers they face on the streets. It's currently available to stream on Netflix or can be rented through the NFB.