In late December 2013, the Supreme Court of Canada released a historic decision related to sex work, perhaps the oldest profession on earth. In a unanimous 9-0 decision in Bedford v Canada, the court struck down three provisions of the Criminal Code related to prostitution- against keeping a bawdy-house [brothel], against living off the avails of prostitution and against communicating or soliciting for the purposes of prostitution.
The Court found that these three prohibitions violated men and women’s section 7 rights under the Charter which protects the right to life, liberty and the security of the person. As such, these laws are now officially considered unconstitutional within Canada.
Plaintiffs Bedford, Leibovitch and Scott, all current or former prostitutes argued that the challenged provisions prevented them from implementing necessary safety measures— such as hiring security guards or ‘screening’ potential clients that could potentially protect them from violent johns. Similar to the argument proposed in R v Morgentaler on the issue of abortion, Bedford’s lawyers argued that the prohibition on brothels forced sex workers out on the streets, leaving them exposed to ‘back-alley’ dangerous work. Writing for the majority, Chief Justice McLachlin echoed these concerns,
“the prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They 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.”
While the Bedford case is a historic day for sex workers in Canada, the future of sex worker’s rights is to be determined. When the Supreme Court makes a judicial decision to invalidate law due to a Charter infringement, one of two things can occur: Either the legislature can engage in debate about how to craft Charter-compliant legislation or they can choose to do nothing. Abortion law in Canada for instance is not necessarily legal or illegal. In Canada, it is not regulated by criminal law but by the Canada Health Act. When laws prohibiting abortion were struck down in 1969 after the Morgentaler decision, the Conservatives at the time attempted to pass new ‘reply legislation’ but failed. Perhaps this is why abortion continues to be politically controversial today.
The Supreme Court in Bedford concluded that these three provisions would not be declared invalid for one year, giving Parliament a one-year time period in which to craft new legislation regulating prostitution. Justice Minister Peter MacKay commented, “the government intends to draft legislation that would help sex workers transition out of the industry, and instead punish pimps and johns.” This is what is commonly referred to in the literature as the ‘Nordic model,’ a model that penalizes the demand or buying of commercial sex but decriminalizes the selling of sex. This model was created in an effort to promote greater gender equality and to help better regulate not only the prostitution industry but also European sex trafficking and modern-day slavery. While the Nordic Model has thought to be one of the most progressive and effective ways to address prostitution and human trafficking, reports from Norway’s Minister of Justice tell a different story, saying that the preferred clients have moved to the Internet while the dangerous johns have stayed on the streets.
Many sex workers argue that any proposed legislation the federal government would enact would do little to help improve their working lives and in fact could do more harm. Plaintiff, Valerie Scott wants the government to do nothing: “Do not rewrite the laws. They did not rewrite the same sex marriage law, they did not rewrite the abortion law. But they know that we’re not a great huge amount of people — and we’re politically not a great cause to get behind in terms of vote-getting.”
Little is certain when it comes to the future of Canadian sex worker’s rights. What is known is that one of the world’s oldest professions is gaining a voice. As human rights legislation continues to take a greater role in the 21st century, Canada’s decisions will continue to influence human rights dialogues around the globe.
To see how Canada’s prostitution laws fare in comparison around the globe, click here.