News  Ontario and Federal government to appeal sex work ruling

New coalition forms to defend decriminalization after September decision

In September 2010, Ontario Superior Justice Susan Himel struck down three provisions of the Criminal Code that placed sex workers at risk in the now historic case Bedford v. Canada. Both the Ontario and the federal government will be jointly appealing that decision.

In an email to The Daily, Kristen Rose, senior coordinator of Media Relations for the Ontario Ministry of the Attorney General, wrote that, despite being stricken, laws prohibiting sex work “continue to be in effect and the status quo remains.”

The three provisions – communicating to solicit sex, running or working in a brothel, and living off income procured by sex work – were ruled to be in violation of the Canadian Charter of Rights and Freedoms when they were challenged in court by Terri Jean Bedford, a dominatrix, and two former sex workers.

The Ontario Court of Appeal stayed the decision of the Superior Court of Justice until April 29, 2011, or until the hearing of the appeal. The appeal is scheduled to be heard over four days by a five-judge panel and will start on June 13.

If Bedford v. Canada stands, the sex trade will be legalized in Ontario, setting a precedent for other jurisdictions in Canada.

Maria Nengeh Mensah, a professor of Social Work at UQAM, spoke to The Daily about the controversial provisions before moderating a panel discussion at the official launch of the Feminist Alliance in Solidarity for Sex Worker’s Rights (FAS) at the Théâtre Ste. Catherine. FAS is a newly formed Quebec coalition of over 200 “individuals and feminist groups working together to support and defend the rights of people working in all sectors of the sex industry.”

Mensah explained that the laws are often applied in a way that creates unsafe working conditions for sex workers.

“They are a cause for repression on the street and indoors – negotiations cannot happen in the best way. And this is the main reason why we want to decriminalize [sex work]. These laws are under the guise of ‘protecting,’ but, in reality, they limit options for police. For instance, it’s hard for sex workers to report theft when explaining the circumstances would criminalize the worker,” she said.

“The laws take aim at the most vulnerable sex workers, those who work off of a street base,” Mensah added.

Rose refrained from providing opinion as to why the Ontario government was appealing the decision, as the matter remains before court.

“We can say, however, that Ontario’s position at the Superior Court was that these provisions of the Criminal Code are designed to prevent individuals, particularly young people, from being drawn into prostitution, to protect our communities from the negative impacts of street prostitution and to ensure that those who control, coerce or abuse prostitutes are held accountable for their actions,” she said. “Thus, in our view, they are consistent with the core Charter values of human dignity and equality.”

According to Mensah, the current laws target and criminalize sex workers, not sex work abusers.

“Criminalization of some things is redundant, particularly when used to intervene when there is assault, gangsterism, exploitation, or the violation or exploitation of children, since laws prohibiting these already exist,” she said.

Mensah also disagreed with the government’s stance on youth.

“Behind the idea of ‘preventing youth’ is the moral idea that sex work is bad, but the law is not meant to reflect particular morals – to paraphrase Pierre Trudeau – the law has no business in the bedroom,” she said.

Seven civil and social groups have intervener status in the upcoming appeal case, including the Canadian HIV/AIDS Network and the Canadian Liberties Association.

Maggie’s, a Toronto-based government-funded sex workers’ agency, also applied for intervener status in order to argue that the legislation further discriminates against women on the basis of gender and occupation.

The Montreal Gazette reported that Ontario Justice Dennis O’Connor denied their application Wednesday as it was too late to address this “significant new ground on which to challenge the legislation.”

Mensah added that in Montreal there are municipal bylaws in place that are meant to remove marginalized workers – especially street-based ones or youth – from the streets.

“For example, it is illegal to communicate with a moving vehicle or throw a cigarette on the ground. More and more the criminal code is being used to target these workers. But with the municipal bylaws, if you don’t pay your fine, it begins a cycle of being judicialized,” she said.

“The bottom line is that sex work involves feminist issues of gender and sex, so we ask for close solidarity, not to impose a particular view or meaning onto the work, but to support each other in their rights.”