On December 20, the Supreme Court of Canada made a landmark ruling in the Bedford v. Canada case by striking down three core provisions of Canada’s sex work laws. The unanimous decision leaves the federal government one year to provide new, legally viable legislation.
The case, brought forward by current and former sex workers Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott, challenged three anti-sex work laws: the “bawdy house law,” which prevents the owning, managing, or occupying of a “brothel”; “living on the avails,” which prevents any third party from profiting off of another person’s sex work; and the “communicating law,” which prohibits any communication for the purpose of sexual services for money in public.
Chez Stella is a Montreal-based organization that advocates for the decriminalization of sex work. Their website outlines that the laws in question make it illegal for sex workers to work from their own homes, hire bodyguards or drivers, or speak in public with clients about specifics such as condom use and which sex acts they consent to.
The organization has advocated for the laws to be invalidated, arguing, “Any law that contributes to the number of deaths, confinements, thefts, physical assaults, and sexual assaults experienced by one group of people – in the name of decreasing street noise, unwanted advances, and moral discomfort experienced by another group of people – is not acceptable and must be struck down.”
“What the court is saying very strongly with its interpretation [of the Canadian Charter of Rights and Freedoms] is that Canadians have a right to policies that are demonstrably shown to protect their interests, rather than policies that are based on moral convictions.”
Concordia University’s Simone de Beauvoir Institute gained intervener status in the Bedford case in June 2013. According to Viviane Namaste, of the Institute, the decision is a step in the right direction.
“The recent ruling is quite a symbolic victory in saying that sex workers that are engaged in the exchange of sex for money – which is entirely legal in the Canadian context – have the right to do so safely,” Namaste told The Daily.
According to Namaste, despite the ruling, there are still sub-articles of the Criminal Code that criminalize activities related to sex work. Namaste explained to The Daily that new legislation should take into account those it affects, stating, “The next step needs to ensure that sex workers are involved in every step along the way to all solutions.”
“For us at the Simone de Beauvoir Institute, we really considered the Supreme Court decision a feminist victory [...] because it has struck down laws which were proven to increase violence against women,” maintained Namaste.
However, the notion that this ruling will promote the safety and protection of sex workers is contested. Claudette Dumont-Smith, Executive Director of the Native Women’s Association of Canada (NWAC), condemned the ruling in a press release on December 20.
“The NWAC is very disappointed with [the Supreme Court decision] as it fails to protect Aboriginal women and girls who are among the most vulnerable population in Canada,” she stated. “The state has pushed Aboriginal women from one institution to another – residential schools, foster homes, group homes, and prisons, to name a few. NWAC refuses to accept brothels as the new official institution for Aboriginal women and girls and we refuse to accept that prostitution is the solution to addressing women’s poverty.”
The NWAC has expressed concern that decriminalizing sex work will attract human traffickers and pimps, which would increase the sexual exploitation of, and violence against, Indigenous girls and women.
Instead, they support the Nordic model of sex work regulation, which only criminalizes pimping and the purchase of sex. The NWAC plans to be involved in the federal government’s discussion of new sex work legislation.
“Any law that contributes to the number of deaths, confinements, thefts, physical assaults, and sexual assaults experienced by one group of people – in the name of decreasing street noise, unwanted advances, and moral discomfort experienced by another group of people – is not acceptable and must be struck down.”
The policy impact of the Bedford decision is up in the air. The three provisions were struck down because they were deemed inconsistent with other legislation concerning sex work and the Canadian Charter of Rights and Freedoms. Speaking to The Daily, Professor Daniel Weinstock of McGill’s Faculty of Law explained that the government has a variety of regulatory options.
“One response could be for [the government] to say ‘Fine, it will be illegal to sell sexual services for money in Canada,’” said Weinstock. “They could also allow the provisions to lapse in full […] ideologically, I think that [the current] government would be inclined to do something more restrictive.”
The fact that the Supreme Court’s decision was unanimous is significant, and could impact future rulings in other areas of the law. Weinstock suggested that there are similarities between Bedford v. Canada and the controversy surrounding assisted suicide and euthanasia.
“What the court is saying very strongly with its interpretation [of the Canadian Charter of Rights and Freedoms] is that Canadians have a right to policies that are demonstrably shown to protect their interests, rather than policies that are based on moral convictions,” said Weinstock.
Parliament resumes on January 27. Weinstock expects the federal government’s future decisions to be impacted by the outcome of Bedford, arguing, “This government is predisposed to govern with an ideological hand, and I think the Supreme Court is saying that won’t pass. We have to see that with respect to these crucial issues – the most fundamental life, liberty, and security interests of Canadians – that we have policies that are governed by the best available evidence.”