OTTAWA, (Reuters) – Canada’s Supreme Court yesterday struck down major restrictions on prostitution, including bans on brothels and street solicitation, declaring the laws unconstitutional because they compromised the safety of sex workers.
The sweeping 9-0 decision will take effect in a year, allowing Parliament to come up with a fresh approach to regulating prostitution, and early talk focused on new legislation to target the buyers of sex rather than prostitutes.
Chief Justice Beverley McLachlin dismissed the federal government’s argument that it was prostitution itself, not the laws that govern it, that puts prostitutes at risk.
McLachlin said a law that banned brothels – what she called “safe havens” for prostitutes – could expose them to predators. She said many prostitutes had no choice but to work in the sex trade, and laws should not make their work more dangerous.
“The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks,” she wrote. “It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.”
Justice Minister Peter MacKay said the Conservative government was concerned with the ruling. He said it was “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.”
The safety of prostitutes emerged a high-profile issue in Canada after the trial and 2007 conviction of serial killer Robert Pickton, who preyed on prostitutes and other women in Vancouver’s Downtown Eastside neighborhood. “A law that prevents street prostitutes from resorting to safe havens … while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose,” McLachlin wrote.
Prostitution is technically legal in Canada but most related activities are against the law, including living off the avails of someone else’s prostitution. That prohibits sex workers from hiring bodyguards to protect themselves, for example. The court found such prohibitions were overly broad or grossly out of proportion to the goals of the laws.
One current prostitute and two former ones, including a dominatrix, initiated the challenge to Canada’s laws, arguing that sex workers would be safer if they were allowed to screen clients, or so-called johns, something prohibited under the no-solicitation rule.
After the ruling, one of the plaintiffs, retired dominatrix Terri Jean Bedford, cracked a riding crop with a whoop in front of reporters in the Supreme Court lobby. It was a “great day for Canada, for Canadian women from coast to coast,” the leather-clad Bedford declared.
Another former prostitute, Valerie Scott, said the Supreme Court had now recognized the personhood of those in the sex trade. “This is the first time in Canadian history that sex workers are truly persons,” she said.
But a number of women’s groups were dismayed by the ruling, and called on the government to put new laws in place. The Women’s Coalition for the Abolition of Prostitution advocated before the court that restrictions needed to be maintained on pimps and on those buying sex. Looking ahead to new laws that Parliament might consider, the coalition’s lawyer, Janine Benedet, said there should be no legal obstacle to criminalizing the purchase of sex: “There is no constitutional right to buy a woman for sex.”
Prostitution is legal in much of Europe and Latin America, and brothels are legal in numerous countries including the Netherlands, Germany and Switzerland.
But questions have begun to be raised, partly because of human trafficking. France’s lower house of parliament passed a law this month imposing stiff fines on clients.
“How prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated,” McLachlin wrote in explaining why she suspended the effect of the judgment for a year.
She said her decision “does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted,” noting that various provisions were intertwined.
“Greater latitude in one measure – for example, permitting prostitutes to obtain the assistance of security personnel – might impact on the constitutionality of another measure – for example, forbidding the nuisances associated with keeping a bawdy house (brothel).”
The idea of criminalizing the purchase of sex and of pimping follows what has become known as the Swedish model and then more broadly the Nordic model as Norway followed suit.
Joy Smith, a Conservative member of parliament, pointed to that approach as the direction Canada ought to go. Countries that have legalized and regulated prostitution have seen sexual exploitation, human trafficking and violence towards women and girls increase drastically,” said Smith, who has worked extensively on the trafficking issue.
Sweden and Norway, in contrast have seen a significant decrease in prostitution and sex trafficking, she said.
In the meantime, the prostitutes’ lawyer, Alan Young, said he expected that for the next year police and prosecutors would likely go easy on enforcing the current laws in light of Friday’s decision.
The name of the case is Canada (Attorney General) v. Bedford, 2013 SCC 72.
