by Janine Benedet, Associate Professor, Faculty of Law, U.B.C. and Thea Hoogstraten, U.B.C. Law Student, June 24 2008
There are currently two cases before the courts, one in Ontario and one in British Columbia, that are trying to have many of the provisions of the Canadian Criminal Code that restrict prostitution and pimping declared unconstitutional. This short paper outlines the arguments that each of these two cases are making, and then identifies some serious concerns with these claims that could contribute to women’s inequality and an increase in violence against women through the normalization of prostitution.
In August 2007, lawyers Katrina Pacey of the PIVOT Legal Society and Joseph Arvay, Q.C. began their constitutional challenge on behalf of a group called the Downtown Eastside Sex Workers United Against Violence Society (SWUAV). This action is set to be heard in court in early 2009.
The group is challenging the constitutionality of “the Prostitution Laws”. This grouping refers to section 213 of the Criminal Code (“The Communication Law”), which prohibits street prostitution by making it illegal to communicate in a public place for the purposes of prostitution; sections 210, 211, and 212(c) (“The Bawdy House Laws”), which prohibit most indoor prostitution in, for example, brothels and massage parlors; and finally section 212(1) (except for subsections (g), (i) and (3)), “The Procurement Law”) which prohibits various forms of pimping.
The Prostitution Laws are challenged on the basis that they separately and/or collectively infringe sections 7, 15, 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms.
SWUAV claims that the Prostitution Laws deprive persons in prostitution their rights to liberty and security in a manner that does not meet with the principles of fundamental justice because they are arbitrary, overbroad, attach high stigma upon conviction, and increase the risk of violence by denying prostitutes the ability to screen their clients in public, work together, and work indoors. It is argued that the Prostitution Laws are unconnected to a valid state purpose because they do not reduce public nuisance or participation in the sex trade, but do increase risk and attach stigma. (the section 7 argument)
SWUAV also claims that the Prostitution Laws violate the Charter’s equality rights because they single out “sex workers” for differential treatment from other groups. It is argued that sex workers who live in poverty, are of aboriginal descent, are homosexual or transgendered, face health challenges/ addictions, or who work on the street rather than indoors feel adverse and disproportionate effects of the Prostitution Laws, and are therefore discriminated against on the basis of sex, gender, race, disability, occupation, and poverty, either separately or as intersecting grounds. (the section 15 argument)
The group also argues that the Communication Law infringes sex workers’ right to freedom of expression (section 2(b)) by prohibiting the particular message (communication for the purposes of prostitution) from being conveyed, and that the Prostitution Laws infringe sex workers’ right to freedom of association (section 2(d)) by preventing sex workers from engaging in the common goal of improving and controlling their working conditions.
SWUAV is seeking a declaration that these sections of the Criminal Code are unconstitutional and so are of no force and effect.
In Ontario, the Prostitution Laws are being challenged by law professor Alan Young on behalf of applicants Terry Jean Bedford, Valerie Scott and Amy Lebovitch. These women identify themselves as involved in or having been involved in mostly off-street prostitution in various forms. Bedford has operated a sadomasochistic/domination dungeon for which she has been convicted under the bawdy house laws.
Their application is somewhat narrower in scope than the BC application, and asks for a declaration that ss.210 (bawdy house), 212(l)(j) (living on the avails) and 213 (1)(c) (communication) violate s. 7 of the CHarter and are thus unconstitutional, and an order declaring that s.213(l)(c) of the code violates s. 2(b) of the Charter.
Under the Bedford challenge, the section 7 argument largely mirrors the BC application, but also argues that the Prostitution laws are not in accordance with the rule of law because “they create an alliance between the Government and the black market whereby the government permits the lawful pursuit of prostitution but forces the prostitute to rely upon the black market, the criminal element, to supply the services needed to conduct this business in a safe and secure environment”. The laws are further challenged as being overbroad, thus criminalizing activities that are not connected to the state’s underlying prohibitive objective.
The application also calls for the Supreme Court to revisit evidence as to the efficacy of the Communication Law, which was found in the 1990 Prostitution Reference case to violate the section 2(b) right to freedom of expression, but to be saved as a reasonable limitation under section1 of the Charter. Young argues that subsequent evidence in governmental reports suggests that the Communication Law does not sufficiently achieve its stated objectives so as to justify a reasonable limit on the right to freedom of expression. This action was commenced before the B.C. case and witness evidence is currently being taken. It will likely be decided first.
Why be concerned about these cases?
These challenges present grave concerns for anyone who is committed to ending violence against women and to fighting for women’s equality. They are problematic both because of the specific arguments that these groups are making to advance their claims and because of the legal effect if their arguments are accepted.
De-gendering and Normalizing Prostitution
The arguments in both the BC and Ontario applications fail to address the deeply gendered nature of prostitution. There is no analysis of the sexual discrimination inherent in men’s expectation of a supply of women’s bodies to purchase on demand. Prostituted women (and men) are not treated any differently for legal purposes from the pimps and johns that buy and sell them; instead, prostitution in its entirety is normalized through the use of de-gendered language and broad status-based labels (like “indoor sex-trade worker”) that are premised on the idea that prostitution is chosen work. The violence and danger experienced by prostitutes is analyzed as the result of misplaced legal restrictions rather than as part of a continuum of male sexual coercion of women, intersecting with discrimination on the basis of race and poverty.
The claims specifically avoid any challenges to the laws that prohibit juvenile/youth prostitution. This is consistent with an ideology that believes that prostitution is a private consensual business transaction. If the supporters of these challenges really believed that decriminalization was a necessary evil to improve safety, they would not be drawing a distinction between youth and adult prostitution.
The claims in both provinces also fail to reconcile decriminalization with Canada’s international human rights commitments that include the adoption “of measures as may be necessary to establish as criminal offences…the exploitation of the prostitution of others”. 1 Prostitution is accepted as inevitable and not inherently harmful.
The term “decriminalization” itself presents a problem in the context of these claims, as it obscures the fact that the claimants really want to legalize prostitution in its entirety. The claimants here argue for the “decriminalization” of all the activities prohibited by the Prostitution Laws, including those which restrict the activities of pimps and johns (and other “living on the avails”). The government, in defending its laws, wants to preserve complete criminalization of prostituted women as well as the men who buy and sell them.
This means that the abolitionist position, which supports the decriminalization of the activities of the prostitutes themselves, but continued criminalization of pimps and johns, is not being presented to the court directly. This position would argue that criminalizing women in prostitution is a form of sex discrimination because it punishes women for being sexually exploited, but that criminalizing the men who engage in that exploitation promotes the equality of women and does not violate the Charter.
These claims are being brought in the superior trial courts of each province, and the decisions will have effect only in that province. However, it is likely that any decision will be appealed to that province’s court of appeal, and then further permission will be sought to take the case to the Supreme Court of Canada. THe Supreme Court of Canada’s decision would apply across the country.
If the challenges are successful and the Prostitution Laws are declared of no force or effect, there will be no law governing prostitution and its associated activities. Unless the trial court issues an order suspending its decision until any appeals are heard, pimps will be free to operate and publicly promote prostitution, including through commercial brothels of the kinds found in many European countries, in the province where the case was heard.
In the absence of legal restrictions on prostitution, there is ample evidence from other countries that demand for prostitution, and the numbers of women in prostitution, will increase. Pimps, traffickers and so-called prostitution tourists will be attracted to this legal vacuum. Research from jurisdictions with legalized prostitution also indicates that the safety issues that some hope will be addressed by legalization or decriminalization are unlikely to be improved. Nevada and Amsterdam, for example, still maintain dangerous and illegal street prostitution industries despite legalized brothels and regulatory schemes. There are typically many more women in illegal prostitution than in legal establishments.
Women in legalized brothels may operate under extreme restrictions and typically have no right to refuse a “client”. Much of the violence in these locations goes unreported. The campaign to get prostituted women off the streets and into brothels, however those brothels are organized and regulated, does nothing to address the social conditions that produce a supply of women to be prostituted and nothing to demand that the state provide the necessary support for women to leave prostitution. It merely pushes men’s abuse of women out of public view.
There is much to be criticized in the current prostitution laws, which unfairly punish women in prostitution, and which treat prostitution as a public nuisance rather than a violation of human rights. If the courts find some or all of these laws unconstitutional, the reasons given for such a declaration would also be very important, as the government’s ability to enact any new law on the subject could be severely restricted depending on the reasoning of the Supreme Court. If the Court finds that people have a right to communicate and associate for the purposes of prostitution, or that laws that target buyers and pimps interfere with core liberty interests, it may be difficult for Parliament to enact a new, better, law that treats prostitution as sexual exploitation. Instead, Canada’s pimps and johns will be given a constitutional right to the prostitution of women.
1. Articles 3-5, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention Against Organized Crime (ratified by Canada 13 May 2002)