Legal Prostitutes

Canada and the Ontario Supreme Courts weigh in on the constitutional rights of prostitutes

By Amy Ward, Section Editor

Via Paul, flickr

Call us the Great Wild North. In recent years, Canadian or Ontario courts have become more permissive about gay marriage, marijuana (at least temporarily), and public female toplessness. Last September, the Ontario Superior Court added prostitution to the list.

Not that sex work is officially illegal in this country. The Canadian criminal code does not prohibit the exchange of money for sex, but criminalizes the public communication of services. Bans on pimping, streetwalking, and operating a brothel attempt to silence the industry, but the law has less to say about  services negotiated in private, for example, by an escort service.

Ontario Superior Court Justice Susan Himel declared those three laws unconstitutional last fall in a court case brought by Terri-Jean Bedford, Valerie Scott, and Amy Lebovitch. The applicants, who are members of Sex Professionals of Canada, argued that the current laws interfered with the freedom of sex workers and prevented them from protecting themselves.

Alan Young, the lawyer representing the sex workers, explained the need for legal reform as a critical safety issue, especially after as many as 50 prostitutes and drug users were believed to have been killed by Robert Pickton in British Columbia.

“A lot of this case happened because of something called Grandma’s House in Vancouver that was set up in the Downtown Lower Eastside while Pickton was picking up his victims,” Young told reporters. “A group of sex workers set up a co-op called Grandma’s House, where they could ply their trade safely, and the police shut it down as a bawdy house.” He emphasized that new legislation would be designed to create a safety net for sex workers, not to expand the country’s sex industry.

Prostitutes, the majority of whom are female, face violence when working in remote areas or clients’ homes. They also lack the ability to pre-screen clients as they could when working from a common facility such as a brothel. Meanwhile, street prostitution creates a nuisance for the neighbourhood, creating noise, traffic, and increasing the risk of children coming across discarded condoms or needles.

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[Young] emphasized that new legislation would be designed to create a safety net for sex workers, not to expand the country’s sex industry.

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In 1985, the Fraser Committee reviewed the state of prostitution in Canada and found that sex work was sometimes an economic necessity for women, and that the Canadian public opposed further criminalization but wanted to reduce the public nuisance of street prostitution. Justice Himel’s ruling therefore recognized that the world’s oldest profession is in no danger of obsolescence, and that the best the law can do is protect the safety of one the most vulnerable populations.

The federal and provincial governments quickly appealed the decision, which if upheld, could set a precedent for other provinces to decriminalize prostitution. The Ontario Court of Appeals will revisit the case in June, with the Crown arguing that the current laws protect the dignity of women and children. With the federal Conservative party’s focus on family values, some believe Stephen Harper may move to criminalize all forms of prostitution.

Plaintiff Terri-Jean Bedford, who currently works as a dominatrix, told reporters, “[Harper’s] silence means that he does not know what to do, and is not concerned about the violence against women.”

“Right now, the way the laws stand, the women work for the pimps. The pimps don’t work for the women,” Bedford said. “If the laws are changed, then the men will work for the women. They will collect their pay cheque at the end of the week, if anything at all, and they will have to file their taxes. The only people who benefit from this law right now are tax evaders and organized crime.”

With a struggling economy and in a province that recently attained “have-not” status, some might argue that decriminalizing and regulating the sex industry would enlarge the government’s tax income. The state of Nevada, which allows prostitution on a county-by-county basis, is estimated to take in $10 million annually from brothels in licensing fees, property taxes, and liquor licenses. That figure could be more impressive when you consider that the state does not charge individual income tax. Industry regulation requires sex workers to be tested weekly for gonorrhoea and chlamydia, and monthly for HIV and syphilis.

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Farley noted that decriminalization of prostitution in the Netherlands, Germany, and Australia led to increased levels of human trafficking in the region.

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Critics say that prostitution is psychologically damaging to sex workers, some of whom are sold into the profession by human traffickers. While researching her book, Prostitution and Trafficking in Nevada: Making the Connection, psychologist Melissa Farley found that many women in the legal brothels in Nevada exhibited symptoms of trauma, institutionalization, and intense emotional stress.  Farley noted that decriminalization of prostitution in the Netherlands, Germany, and Australia led to increased levels of human trafficking in the region.

There are dangers associated with decriminalizing prostitution, just as there are dangers associated with criminalizing behaviour to which a particular group feels morally opposed. But the Sex Professionals of Canada wisely refer on their website to the United Nation’s Declaration of Human Rights, which says that no one should aim to protect one group’s rights by destroying the rights of another.

People will always engage in human trafficking and prostitution in Canada, regardless of our legal stance. The best we can offer is protection for those most vulnerable groups.

ARB Team
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