The Oldest Profession Finally Gets Some Legal Legitimacy

Stacey Nichols and Joseph A. Neuberger

The federal government has recently announced their intention to appeal the ruling of the Ontario Court of Appeal in the case of Canada (Attorney General) v. Bedford, 2012 ONCA 186.

The original challenge launched in the Ontario Superior Court of Justice was to three sections of the Criminal Code of Canada dealing with prostitution and the common "bawdy-house." The provisions in question were: s.210(1) (common bawdy house), s.212(1)(j) (living on the avails) and s.21(1)(c) (communicating for the purpose of prostitution). The sections were challenged under both sections 7 and 2(b) of the Canadian Charter of Rights and Freedoms. The hope is that a more cohesive and less contradictory regime can eventually be put in place by Parliament. The original applicants in the case (now Respondents) are Terri Jean Bedford, an infamous sex trade worker and dominatrix; Valerie Scott, who has worked in the sex trade since the early 1980's and who is now an activist who campaigns for the rights of sex workers, and Amy Lebovitch who has been a sex trade worker since 1997.

After reviewing an extensive application record and hearing days of argument, Justice Himel of the Ontario Superior Court of Justice struck down all three sections of the Criminal Code in their entirety in a ruling dated September 28, 2010. The federal government subsequently appealed to the Ontario Court of Appeal.

In the more recent ruling by the Ontario Court of Appeal dated March 26, 2012 the court allowed the appeal of the decision of Justice Himel in part, with the majority of the court, Doherty, Rosenberg and Feldman JJ.A. (MacPherson J.A. dissenting in part) holding that the common bawdy-house and living on the avails provisions should be struck down as breaching s. 7 of the Canadian Charter of Rights and Freedoms. The court further held that the communicating provision did not violate the Charter and this section was upheld.

While unfortunately the court did not uphold Justice Himel's ruling in its entirety, the decision was certainly applauded in large part by the respondents and their counsel and there is definitely a sense of relief that Ontario's highest court acknowledged that sex workers should not feel like second class citizens and that they should be entitled to all of the health and safety provisions that other Canadians benefit from.

The decision in Canada (A.G.) v. Bedford was, for the most part, an encouraging recognition by the court that certain sections of the Criminal Code serve to isolate, endanger and exploit women who choose to practice what is in Canada a legal activity, the selling of sex, but by leaving the communication provision intact the court fails to appreciate how this section seriously contributes to potential violence against sex trade workers.

Since the launch of the application in 2007, it has been felt that parties opposing the application to have the provisions struck down were missing the point. Regardless of any societal nuisance that may be caused by bawdy-houses and street solicitation, the laws were operating to put sex workers in danger, by not allowing them to protect themselves through proper screening, practicing in indoor locations and being permitted to have others supply services such as being a driver or bodyguard.

This decision was undoubtedly an acknowledgment that sex workers can more adequately protect themselves while practicing indoors, and by availing themselves of others who can assist when a worker's safety is at risk. When the matter proceeds to the Supreme Court of Canada, the respondents are hopeful that the court will agree with MacPherson J.A., in dissent, with regard to the communication provision wherein he holds, "By displacing prostitutes into isolated areas and discouraging them from working together, the communicating provision increases the risks faced by prostitutes. My colleagues disregard this displacement and assign no weight to its effects." (Para 353).

While the Court of Appeal did acknowledge that indoor locations and the provision of bodyguards was beneficial to ensuring their safety, it seems contrary as outlined by MacPherson J. A. in his ruling that they in turn did not acknowledge that the communication provision serves to seriously undermine the safety of sex trade workers by disallowing them to properly screen potential clientele and forcing workers to practice in areas where their safety is compromised.

Based on the application record presented by the applicants in the Superior Court of Justice, which included affidavits from 21 witnesses, industry sex trade workers and scholars who have conducted extensive research over the years, as well as a huge body of legislative facts, analysis and recommendations presented in numerous government reports and studies, the "communicating" provision undoubtedly contributes to countless beatings, rapes and even murders of sex trade workers across Canada. This section effectively pushes sex trade workers into rundown areas less likely to be frequented by law enforcement as well as lessening the likelihood that workers will be able to properly screen potential "johns" prior to entering their vehicles, or accompanying them to remote areas. This provision which the Court of Appeal upheld could arguably contribute the most to the dangers associated with the profession and serves to isolate the most marginalized sex trade workers, those that work on the streets.

Striking down the legislation will certainly not cure all problems associated with the sex trade, but as it stands now an important step has been taken in Ontario to address the very serious issues that face society due to the sometimes arbitrary nature of the law.

The courts must be activists in forcing Parliament to rationalize the law in this area in order that it does not work at cross-purposes to its objective, and not delude the Canadian public into believing that the sex trade will ever be curtailed by irrational criminal sanction.