I thank Pilotguy for calling my attention to this news story, and to Ant and Kaiju for calling my attention to the news stories discussed in tomorrow’s column. I ask that my readers email me with links to such stories whenever you see them; I’m only one busy woman, and I sincerely appreciate the extra pairs of eyes looking out for things which might interest my readers and me.
Though prostitution is technically legal in Canada, there are a whole raft of laws designed to make it as difficult and dangerous as possible to actually practice the trade; this is of course typical in legalization regimes, unlike criminalization systems (such as the US) where the act itself is illegal. In Canada, nearly every conceivable action a prostitute might take is prohibited; this includes advertising, practicing her trade in her own house (because that would make it a “brothel”) or the ever-popular “living off the avails” laws which force her to live alone without family or employees. But three prostitutes challenged those laws last year, and yesterday the Superior Court of Ontario ruled in their favor. The following is paraphrased from a Canadian Broadcasting Company press release:
Ontario’s Superior Court of Justice ruled Tuesday (September 28th) that Canada’s anti-prostitution laws are unconstitutional in response to a challenge filed last year by a Toronto dominatrix and two prostitutes. In her ruling, Justice Susan Himel said the Criminal Code provisions relating to prostitution contribute to the danger faced by sex-trade workers, and that it now falls to Parliament to “fashion corrective action.”
“It is my view that in the meantime these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the charter violations,” Himel wrote. ”However, I also recognize that a consequence of this decision may be that unlicensed brothels may be operated, and in a way that may not be in the public interest.” The judge suspended the effect of the decision for 30 days; it does not affect provisions dealing with people under 18.
Justice minister Rob Nicholson and Rona Ambrose, minister for the status of women, both said the government is concerned about the decision and “is seriously considering an appeal.”
Terri-Jean Bedford, Valerie Scott and Amy Lebovitch had argued that prohibitions on keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade force them from the safety of their homes to face violence on the streets; they asked the court to declare legal restrictions on their activities a violation of charter rights of security of the person and freedom of expression. The women and their lawyer, Alan Young, held a news conference Tuesday afternoon and expressed elation. ”It’s like emancipation day for sex-trade workers,” said Bedford, adding the ball is now in Prime Minister Stephen Harper’s court. ”The federal government must now take a stand and clarify what is legal and not legal between consenting adults in private.”
Scott called it an amazing victory, saying the decision lessens the risk of violence for sex workers. ”We don’t have to worry about being raped and robbed and murdered,” she said. “This decision means that sex workers can now pick up the phone, and call the police and report a bad client. This means that we no longer have to be afraid, that we can work with the appropriate authorities.” Moreover, sex workers can set up guilds and associations, health standards, workmen’s compensation programs, as well as pay income tax. “We want to be good citizens and it’s time, now we finally can,” said Scott.
Young handled the case mostly free with the help of 20 of his law students. They were up against nearly a dozen government lawyers. ”Personally, I am overjoyed because this is a great David and Goliath story. Sex-trade workers are disenfranchised and disempowered, and no one has listened to them for 30, 40 years,” Young said. The case does not solve the problems related to prostitution, he said; “That’s for your government to take care. Courts just clean up bad laws. So what’s happened is that there’s still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That’s not going to change,” he added. ”Here’s what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law.”
A spokesman for Ontario’s attorney general said the office will be reviewing the decision carefully and will consult federal colleagues regarding a potential appeal. ”Ontario intervened and argued that the prostitution provisions of the Criminal Code are constitutional and valid and designed to prevent individuals, and particularly young people, from being drawn into prostitution, to protect our communities from the negative impacts of street prostitution and to ensure that those who control, coerce or abuse prostitutes are held accountable for their actions,” said the statement from the Ontario attorney general’s office. The government had argued that striking down the provisions without enacting something else in their place would “pose a danger to the public.” Some prohibitionist groups such as so-called “Real Women of Canada”, which had intervener status in the case, argued that decriminalizing prostitution may make Canada a haven for human trafficking and that prostitution is harmful to the women involved in it.
While prostitution is technically legal, virtually every activity associated with it is not. The Criminal Code prohibits communication for the purpose of prostitution. It also prohibits keeping a common bawdy house for the purpose of prostitution. Those laws enacted in 1985 were an attempt to deal with the public nuisance created by streetwalkers. They failed to recognize the alternative — allowing women to work more safely indoors — was prohibited. The ban on bawdy houses is an indictable offence that carries stiffer sanctions, including jail time and potential forfeiture of a woman’s home, while the ban on communication for prostitution purposes is usually a summary offence that at most leads to fines. The provisions prevent sex-trade workers from properly screening clients, hiring security or working in the comfort and safety of their own homes or brothels, Young said. He cited statistics behind the “shocking and horrific” stories of women who work the streets, along with research that was not available when the Supreme Court of Canada upheld the communication ban in 1990.
Now, before you get too excited please note several things. First, the decision only applies to Ontario; sex workers are still criminals if they move or breathe anywhere else in Canada. Second, the decision does not take effect for a month, which gives the politicians plenty of time to seek an emergency injunction against the ruling from the Supreme Court of Canada. Third, you can bet your first-born that those same politicians will appeal the decision in the name of “protecting women” both from ourselves and from those good old bogeymen, the pimps and “human traffickers”. And fourth, this decision doesn’t stop politicians from making new and equally absurd laws to shackle prostitutes, and each such law would have to be challenged separately. The fight isn’t over, not by a long shot.
Remember, Canadians aren’t any smarter than Americans; they are just as prone to believe the lies of politicians and neofeminists about the “inherent degradation” and “criminal character” of whores as their neighbors to the south. The average ignorant Canadian still suffers from the Madonna/whore duality and believes the same stereotypes of dirty, diseased, lustful, not-quite-human whores as the average ignorant American. The only reason prostitution was even technically decriminalized in the first place was due to the wording of one particular clause in the Canadian constitution; the same type of loophole in the constitution of Rhode Island made prostitution legal there for almost 30 years, yet it was still recriminalized less than a year ago. And just as an unholy cabal of cops, politicians, neofeminists, bluenosed control-freaks and trafficking alarmists conspired to suppress our right to make an honest living in Rhode Island, you can bet the same forces of tyranny will spare no effort or expense to use whatever lies and propaganda they think necessary to recriminalize it in Canada, assuming the Canadian high court doesn’t simply overturn this decision next week (which it easily could).
So I’m going to refrain from celebrating, hoping or even allowing myself a bit of optimism about this; I’m simply going to watch and wait and comment as things develop. But there is one ray of light in all this; a judge, and an important one at that, saw through the lies and the propaganda and the hysteria and actually listened to what three members of one of the last remaining oppressed groups on the face of the Earth had to say. And that, coupled with recent decriminalization of our trade in other Commonwealth countries like Australia and New Zealand, gives me some small hope that our day may at long last be coming. Not here yet or even near yet, but perhaps on its way in the dim and distant future.