Supreme Court of Canada removes laws criminalizing prostitution: What’s next?
I’m glad I was partially wrong in my reflections yesterday about the impending Supreme Court of Canada decision in Bedford. The Court did not follow the lead of the Ontario Court of Appeal by letting the laws pertaining to street prostitution stand. All the laws fall on the s. 7 Charter guarantee of security of the person. That seems ironic to some of us – since prostitution itself, indoor and outdoor, is the greatest threat to women’s security. But there it is. We have achieved one of our goals with resounding success: all women are now decriminalized if the Supreme Court regime stands and some of the most vulnerable women in prostitution – those who work on the streets – have not been ignored. This is a victory to be celebrated.
Analysis of the judgment itself will take time and should take time but what I will say now is that there is much in the judgment to be deeply concerned about. For one thing, the Court accepted the “social” evidence accepted by the trial judge (and by the way there was no actual “trial” – it was a Reference to the court and all the evidence was presented by affidavit). On the Reference, the evidence of those of us who know prostitution to be violence against women by definition was judged to be biased and biased in a way that actually recognized women’s inherent right to equality before the law. We needed a s. 15 challenge to these laws – i.e. a challenge on the basis of women equality – and that’s not what we got from Mr. Alan Young. I have no doubt we will make sure that future laws meet such fundamental claims on behalf of women. For now I hope that Canadians take note of the fact that while the Supreme Court did conclude that our present laws endanger women engaged in sex trade, they also clearly understood that prostitution is a “risky activity.” Perhaps legislators can be convinced to look at the source of the risk – and that would be men, the pimps and the johns.
But the Supreme Court accepted that the laws themselves endanger prostitutes, beyond the inherent extreme risks of engaging in sex trade. That poses a problem in crafting new legislation that seeks to protect women in the trade because new laws will have to stand up to further constitutional challenge on that basis. Right now it’s difficult to think of a law that would, in any way, constrain prostitution without violating such a broadly framed constitutional prohibition. But I’m sure the independent women’s movement will think our way through these difficulties.
Right now the problem is the one we’ve had since the day that Young and his client pressed forward with the challenge to the laws as they stand. That is that the finding of the Court necessitates new legislation and the government that will craft that new legislation is Stephen Harper’s. It’s clear from the resolution adopted by the CPC at their latest convention that they will not leave the field empty. They appear to be committed to criminalizing pimps and johns while leaving women decriminalized in a fashion that looks very similar to the Nordic Model that we support. As I said previously, I have trouble believing that the most socially conservative government Canada has ever had will actually follow through with this kind of legislation. We will have to watch carefully and pressure them to do so, and to do so without capturing activities that constrain a broader set of civil liberties while not doing the job of protecting women, which ought to be the goal. Let’s not forget their new cyberbullying legislation that criminalizes stealing cable tv signals, for example… This could be a rather large problem given that the CONs are not apt to let us see the legislation – all the legislation – before it’s presented to Parliament.
The further difficulties that this neoconservative government presents are fairly well known: Their defunding of and lack of support for the social services that assist women in exiting prostitution; their stubborn resistance to the claims of Indigenous people, especially Indigenous women who are overrepresented in the trade and as victims of violence along with resistance to programs sensitive to the special problems of immigrant women and Asian women working the trade hidden “indoors;” the dismantling of government-supported healthcare programs and the privatization of social services that then do not deliver adequately to women living on the social and economic margins; the exacerbation and deepening of economic sex inequality that leaves too many women without well-paying and secure work and unable to provide for themselves and their children.
These issues are not new. Nor is the willingness of neoliberal society to let victims of socioeconomic and political inequality fall by the wayside, perhaps particularly when they are women. It’s unclear to me that either a Liberal or a New Democrat government would do better and there is some tragedy in that. The decriminalization of women without the criminalization of pimps and johns is unacceptable. A lack of political commitment to reducing social and economic inequality is equally unacceptable. There is no party in Canada today that stands clearly for both these principles. Perhaps it’s time we had one?
Elizabeth Pickett is an internet-based feminist freedom fighter, a mother and grandmother, a blogger, and a poet, seething in Winlaw, B.C.