A landmark decision, Bedford v. Canada, passed at the Canadian Supreme Court on Friday, struck down all three anti-prostitution laws in the Canadian federal criminal code and recognized sex workers’ rights to occupational safety.
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Many people mistakenly believe that prostitution is now “legalized.” But prostitution has never been illegal in Canada. However, several related activities were criminalized: Sex workers were prohibited from communicating with clients on the street, which would create a public nuisance. They were also prohibited from working indoors in “bawdy houses,” where they could conduct their business more safely. Anyone who benefited from prostitution, including the boyfriend or girlfriend of a sex worker who unknowingly shared the rent, and the landlady, driver, bodyguard, or accountant of a sex worker, could be considered a “pimp,” and therefore a criminal.
These laws effectively isolated sex workers and prevented them from screening their clients and negotiating for safe sex practices, directly contributing to violence and harm in the sex industry.
The court ruled that the harms inflicted upon sex workers by these laws were “grossly disproportionate” to the objectives of the laws, which were ostensibly designed to protect sex workers from exploitation.
According to the court opinion, the laws were “overbroad … imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks … depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.”
In other words, after a thorough examination of the evidence and multiple testimonies put forward in June, the court weighed the arguments of antiprostitution groups who insist on calling sex workers “prostituted women” and pretend to be saviors of sex workers while advocating for policies that actually do great harm to people in the sex trades – against the arguments of sex workers themselves and have been bullied and dismissed for decades by the rescue industry, which continues to mislead the public with bad data. And in light of the evidence, the court decided to listen to the sex workers.
This is an historical moment: a long-awaited affirmation that sex workers are human beings and citizens, deserving of Charter rights like any other citizen.
Furthermore, the court established an important principle: that it is the duty of the Canadian government to listen to and protect, rather than silence and punish, its most marginalized citizens.
“Sex workers need access to the same laws as any other Canadian,” says Emily Symons, a grassroots sex worker rights organizer in Ottawa, “Sex work is not exceptional.”
“We’re very excited to hear the news,” says Action Canada for Population and Development (ACPD), it’s “a step towards aligning Canadian law with international human rights standards.” The Simone de Beauvoir Institute of Concordia University called it a “great feminist victory.” In recognition of LGBTQ rights, and the disproportionate violence experienced by trans people in the sex industry, Egale Canada commends the ruling, and “supports the total decriminalization of sex work among consenting adults and associated activities as the best evidence-based mechanism for promoting the autonomy and safety of sex workers in Canada.”
The official opposition party, the National Democratic Party, also publicly declared its support of the court’s decision, calling it an “extremely important ruling,” and affirmed 2013 resolutions that “adult sex workers have the right to live and work in conditions that are safe, healthy and free from violence and discrimination.”
However, Conservative Party Minister of Justice Peter MacKay expressed concern about the “significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.”
The concern for public nuisance, of the negative community impact that visible street workers inflict – has always been the historic driver of anti-prostitution legislation.
This year, the court finally declared:
“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”
This bit is essential. No longer is it okay to dismiss the rights and safety of sex workers as minor casualties in a larger war for visible public order.
The court’s decision will not go into effect until next year, during which time the House under Harper’s majority Conservative government will decide what new legislation shall be created to regulate the sex industry or whether specific regulations will be left to municipalities.
The National Democratic Party stated: “We will be looking for the Conservatives to work with us on important related issues, such as income support, education and training, poverty alleviation, housing and treatment for addictions.” Emphasizing the important role that sex workers should have in creating legislation that governs their lives, the NDP affirmed: “Rather than an approach that further marginalizes already vulnerable sex workers, we need the government to focus upon working with them in order to build a comprehensive strategy to better protect and support women.”
So the battle is not over yet for sex worker activists in Canada: Now a conversation needs to be had about regulation, zoning, taxation, wages, health, and labor rights. The next battle is avoiding the mistakes of the Swedish policy model.
There are already members of the Conservative government and antiprostitution activist groups who are looking to exploit the judicial victory to turn the conversation toward making the purchase of sex illegal by criminalizing buyers, following the Swedish laws in 1998. However, there is a large discrepancy between its between its advertised effect and its actual effect. According to policy research by the Canadian HIV/AIDS Legal Network, this Swedish law has:
· Increased violence against sex workers;
· Reduced sex workers’ negotiation power with clients, especially for safe sex practices;
· Increased aggressive policing and discriminatory treatment by health providers;
· Increased difficulty in accessing housing and social services;
· Increased the incidence of HIV/AIDS among sex workers in Sweden;
· Erased attention toward male and trans sex workers;
· And damaged the safety networks between sex workers.
Meanwhile, the Swedish Policy failed to actually deter the purchase of sex or decrease demand. It merely drove the Swedish sex industry indoors, underground, and to neighboring countries.
These initiatives aimed at ending demand in the sex industry through the carceral politics of criminalization and policing serve only to “replicate all of the same harms that we have seen in the judgment that came down today,” said Katrina Pacey, litigation director for the Pivot Legal Society.
“The Swedish Model already infringes upon Charter rights, and simply would not be considered constitutional in Canada. It makes no headway in addressing violence against sex workers,” stated the Canadian HIV/AIDS Legal Network. However, in New Zealand, where prostitution was completely legalized in 2003, 60 percent of sex workers reported feeling more empowered in negotiations with clients, only 4 percent felt pressured in the sex industry, and fewer than 1.3 percent of those in the sex industry are under the age of 18. Contrary to claims by antiprostitution groups, there was in no significant increase  in prostitution or trafficking following the legalization of sex work in 2003.
“I hope that people will take into account that the most concerned people are sex workers who live with the harmful effects of these criminal laws which make the sex industry dangerous,” said Montreal sex worker activist Robyn, from the Ottawa organization Stella. “There’s a big saying in the sex workers’ rights movement that says: ‘Nothing about us without us.’ I think we need to recognize . . . and remember that there are already laws against coercion, kidnapping, and human trafficking; and that could be enough. What sex workers really need is access to labor rights, and not necessarily special regulations. If some decisions are going to be made, it has to be made with women from all parts of the industry, be they indoors or on the street level.”
“While today is a day to celebrate, our work doesn’t end here,” said Fred Chabot, from the sex worker organization POWER. “We now need to work with federal, provincial and municipal lawmakers who will be seeking to regulate our newly decriminalized industry in a way that makes sense for everyone.”
 See Page 12 of link.