Sex workers deserve our day in court

Nikki’s notes: Thanks to the Huffington Post for posting a shorter version of this article on their site! If you came here as a result of seeing my article there, please read the whole thing, because I also talk about why it’s important to have the “exploitation” requirement of the Ontario Court of Appeal’s judgement on S.212(j) clarified by the Supreme Court, before anyone else is charged under this law. Feedback is always appreciated!

The Supreme Court of Canada has just announced that they will decide whether they will hear the government’s appeal of the Ontario Court of Appeal’s decision from March 26, 2012. They will also decide on whether they will hear the cross-appeal launched by the applicants, which seeks to restore the original decision from Justice Susan Himel in its entirety.

Some quick background on the case: in 2007, a group of sex workers – Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott – launched a constitutional challenge against three parts of the criminal code surrounding sex work: Section 210, the “Bawdy House” law; Section 212(j), the “Living on the Avails” law; and Section 213(c), the “Communicating for the purposes of solicitation” law. It should be noted that NONE of the laws being challenged would have changed the legal status of non-adult or coercive prostitution, which would (and should) remain illegal; this challenge was explicitly limited to sex work between consenting adults.

On September 28, 2010, Justice Susan Himel of the Ontario Superior Court agreed that these laws were unconstitutional under Section 7 of the Canadian Charter of Rights & Freedoms, which is the guarantee of Security of the Person. Justice Himel correctly ruled that these laws forced sex workers to choose between their liberty and their security, which goes against our constitutional rights. Sex work is a legal profession, and these laws were deemed overly-restrictive and disproportionately-harmful to those involved in sex work.

Subsequently, the government launched an appeal, which was heard by the Ontario Court of Appeal in June 2011. They released their decision on March 26, 2012, and the five justices unanimously agreed that S.210 was unconstitutional, and upheld the original decision. Regarding S.212(j), all five justices agreed that the provision was unconstitutional, except in cases where “exploitation” was evident. Lastly, on a 3-2 split, the Court of Appeal ruled that the S.213(c) “Communicating” law was constitutional, and overruled Justice Himel’s decision on this law. However, a very powerful dissenting opinion from Justices MacPherson and Cronk went against the majority, leaving the Communicating law anything but clear.

The government has again appealed the OCA’s decision, and on October 25, the Supreme Court of Canada will decide whether they will hear their appeal or not. A cross-appeal has also been launched by the applicants, seeking to overturn the OCA’s decision on the Communicating law and to seek clarification on the meaning of “exploitation” for the purposes of the Living on the Avails provision. Ultimately, it is my hope that the SCC agrees to hear the case in its entirety, for a number of reasons.

First, the decision is currently only applicable in Ontario, despite the fact that the Criminal Code affects all Canadians. As such, only a decision from the SCC can enact a nationwide change to these laws, even though a similar challenge is already under way in British Columbia; SWUAV (Sex Workers United Against Violence) recently won a judgement granting them standing to appeal these laws on similar grounds.

Second, the OCA’s decision to uphold the Communicating Law is nothing short of a travesty. Street-based sex workers are disproportionately targeted for violence and abuse, and for the court to deny them an important way of protecting themselves – asking questions of potential clients, and establishing rules and boundaries – is reprehensible, especially since communication represents so little of a public nuisance that it can easily be viewed as negligible. What the ability to communicate provides is something I call critical distance – the ability to create time and space between sex workers and our potential clients, to determine whether they are legitimate clients or a potential threat.

For those of us using different business models – arranging appointments through the internet, or over the phone – this critical distance is already built into our modes of communication. We can take whatever time we deem necessary to screen our clients, request whatever information we require to establish trust, and take as much time as we need to decide if we want to see this person, or decline their request. This critical distance allows us to make thoughtful and reasoned decisions, without restrictive time pressures, or feeling ourselves under the threat of arrest. More importantly, it allows us to establish accountability on the part of the client, which is the single most important means for deterring violence.

The vast majority of violence against sex workers is opportunistic, rather than malicious; people attack and exploit us because they think they can get away with it, without fear of legal consequences. Police apathy, social stigma, and the threat of legal repercussions all combine to create a potentially-explosive environment in which we must work, and only by establishing accountability on the client’s part can we deter the opportunism that puts so many of us in danger. Street-based sex workers are the most vulnerable of all, and the ability to discuss details and expectations with potential clients without the threat of a Communicating charge will lessen that vulnerability considerably, and give street-based workers the chance to assess a potentially-dangerous situation.

Lastly, the term “exploitation” is far too vague to apply to the S.212(j) “Living on the Avails” provision, and needs further clarification. S.212(j) is the tenth of ten separate provisions meant to prevent procuring and coercion into the sex trade, and I agree that the previous nine provisions should remain law to prevent exploitation; however, the simple act of receiving money from a sex worker for assisting her in some way should not be considered a crime. This law puts web designers, phone operators, drivers, security personnel, or even our spouses or adult children at risk of prosecution simply for receiving any money from a sex worker. This only serves to marginalize and isolate us further, and puts us all at greater risk.

Sex work is a highly contentious issue, but it is a legimate profession that one can freely choose if so inclined. Whatever personal or moral objections one may have towards the profession, this challenge is about much more than morality – there is simply no justification for creating unconstitutional laws that only serve to make an entirely-legal profession even more dangerous. We Canadians all have a right to life, liberty, and security of the person, even those of us involved in sex work – and no government laws may infringe on those rights. That’s exactly what this challenge is all about.

1 thought on “Sex workers deserve our day in court

  1. One of the key touchstones of any society lies in how it treats its most vulnerable and least-privileged members. So surely this case MUST fall squarely within the Supreme Court’s mandate of dealing with “questions of public importance”.

    For example, I can’t begin to imagine how any nebulous potential benefit of reducing nuisance, through the application of the public communication law, could ever trump the blood-price that is being paid for it. Flimsily-transparent rationalizations written by Doherty, Rosenberg, and Feldman notwithstanding.

    Are not the actual nuisance laws themselves adequate? If not, fix THEM.

    Which is more important: the line between nuisance and enjoyment; or the line between life and death? We cannot be content to shovel in the muck of pig farms, and enlist the help of dna labs, in order to locate the current whereabouts of marginalized members of our society. When we go looking for them at all.

    History clearly shows that our elected representatives have failed to protect these vulnerable people. So society can do nothing except turn its hopes to jurisprudence. In the face of this, the Supreme Court surely will not merely plug their ears and sing “la la la we can’t hear you”.

    Ever the cautious optimist,


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