Justice will only exist where those not affected by injustice are filled with the same amount of indignation as those offended. – Plato
One year ago today I pointed out that though the still-contested Himel decision striking down Canada’s anti-prostitution laws in Ontario was “only one tiny crack in a very large and solid dam,” that “many such tiny cracks can weaken even the toughest structure so that one day it may yield to other pressures upon it.” That column reported another such crack: a judge in British Columbia allowed a similar challenge to the prostitution laws to proceed despite the efforts of prohibitionists to block it on a technicality. And now just in time for the anniversary of that decision, I’m happy to report yet another constitutional challenge, as reported on October 7th by CTV:
Canada’s prostitution laws are facing another constitutional challenge from a woman charged with keeping a bawdy house. And the lawyer mounting the case says other charges laid against sex workers in BC are in trouble because anyone can use a charter challenge as a defense in court. “It’s the same experts, the same evidence…the constitutional challenge is not out of reach the way it was two years ago,” said Joven Narwal…[who] represents a woman who was charged with keeping a bawdy house, living on the avails of prostitution, and procuring a person into the sex trade after Vancouver police raided…[her business just] days after an Ontario judge ruled that Canada’s prostitution laws are unconstitutional…In B.C., former sex worker Sheryl Kiselbach challenged the same laws, though the case is tied up in legal delays.
Putting those two cases together means anyone has access to the research and arguments to build a charter challenge, said Narwal. “It’s easier now to the extent that you know which evidence is necessary, which experts will be necessary,” he said. There are some 90 solicitation charges being prosecuted right now in B.C., and two groups of bawdy house charges. “They’re all compromised to the extent that anybody who is going to fight is going to sue constitutional arguments,” said SFU Criminologist John Lowman. B.C. prosecutors admit this will mean a harder fight in court, but they won’t be deterred. “If a charter challenge is raised, that will be more complicated,” said Crown spokesman Neil MacKenzie. “If that happens more often, we’ll just deal with it on a case by case basis.”
Obviously, prosecutors “won’t be deterred”; it isn’t their own money they’re wasting, and the fight is at least half of the sadistic fun for them. But that struggle is about to get a lot more difficult (and probably less fun) as the cracks in their prohibitionist dam keep multiplying. Remember Insite, the Vancouver harm reduction project the Canadian government was trying to close down? Well, the Canadian Supreme Court has unanimously decided in Insite’s favor, and legal experts are already predicting that this will undoubtedly help the sex worker rights case (thanks to Kelly Michaels for calling this October 7th Vancouver Sun story to my attention):
Canadian courts could strike down the country’s anti-prostitution laws if judges follow the logic of a landmark Supreme Court ruling on drug policy that came out last week. Experts say the biting unanimous decision preventing the closure of North America’s only safe-injection site for drug addicts has implications for a challenge to Canadian adult prostitution laws that is working its way through the courts. The court said closing the Insite clinic violated addicts’ basic rights to life and security, given evidence that the clinic reduced the risks from drug addiction. “I think it’s going to be cited in many, many cases,” said Errol Mendes, law professor at the University of Ottawa. He said the ruling’s logic can apply in a prostitution case that is likely to end up at the Supreme Court…Ontario’s Court of Appeal is expected to rule on the case soon. If it and then the Supreme Court uphold Himel’s decision, the federal government will have to find another way to restrict prostitution, or perhaps accept legalized brothels of the sort found in Nevada.
Both Himel’s ruling and the Insite ruling found government actions did not meet the “principles of fundamental justice” that underpin Canadian legislation…A lawyer in the prostitution case agreed that the Insite case was significant for his challenge…Canada’s Supreme Court is less politicized than the U.S. court, and few lawyers expect that to change even after Conservative Prime Minister Stephen Harper names two new judges, probably within months. Experts said the Insite decision showed that the government could not ignore scientific evidence to push a legal agenda that opposes drug use or prostitution. Significantly, the Supreme Court did not examine whether the trial judge was right to conclude that Insite saved lives, focusing on how the government had to react to that evidence. This might make it easier for the Ontario court to dismiss requests from government lawyers to reexamine the facts of the prostitution case…
Those cracks aren’t just legal, but social as well; as I reported in last year’s column and several other places, public support for criminalization in Canada is rapidly eroding and a number of newspapers have taken a pro-decriminalization stance. I’m willing to bet that ad campaigns like this one from Nova Scotia have helped by showing that prostitutes are “regular people”, thus fighting police propaganda that we’re all criminals and prohibitionist propaganda that we’re all damaged victims. Thus, I’m very pleased to see that St. James Infirmary has launched an ad campaign along very similar lines, and considering the story was featured on Huffington Post it may even find its way into the mainstream media:
…St. James Infirmary’s new media campaign promoting the rights of local sex workers…[is] a collaboration between [the infirmary]…and artists Rachel Schreiber and Barbara DeGenevieve…[and] features portraits of sex workers and supporters — spouses, partners, family members and health care professionals — putting faces to the people who work in the industry…”We wanted to make visible the workers who tend be invisible,” said Schreiber…”Sex workers aren’t people hanging out in a dark alley somewhere; they are nurses, teachers and mothers. Our goal is to demystify sex workers. They are just everyday people.” Schreiber believes that because of the mystery and invisibility surrounding the sex industry, workers have trouble accessing the resources they need — an issue she’s hoping the campaign will bring to light…the recent controversy surrounding Ashton Kutcher’s anti-sex trafficking campaign caught her eye…“When the focus of so much media attention is on the trafficking, it doesn’t leave room for anything else — like the resources to keep those who choose to work in this industry safe and healthy, and to give those who feel like they don’t have a choice a way out.” According to Schreiber, the problem with the media attention is that it fuels enforcement rather than support. “Many of the sex workers we assist at St. James choose to do what they do. And they have needs and rights just like everyone else,” said Schreiber. “And for those who feel stuck due to financial situation, the answer is in getting them the help they need, not in having them arrested.”
The result of the project: an honest, sincere and informational campaign across San Francisco. Schreiber originally planned to house the campaign on billboards across the city, but both Clear Channel and CBS Outdoor rejected the campaign, telling Schreiber that “sex worker [is] not a family friendly term”…But Titan 360, the ad company that supports BART, Muni and AC Transit, happily agreed, posting Schreiber’s photographs on Muni busses all over San Francisco. “We’re hoping this starts a dialogue,” said Schreiber. “And we want sex workers to be a part of that dialogue.”
Furry Girl’s sex worker rights billboard was similarly rejected by ad companies, but she finally located one who would take it. As in so many areas, the United States lags behind the rest of the developed world on sex worker rights. But when the prohibitionist dam crumbles in Canada, the cracks are bound to spread south; it’s good to see a few of them are already appearing.