The Supreme Court’s landmark ruling in Bedford on the civil rights of sex workers in Canada is potentially huge, though the hopes of many of them, including the applicants (three women who have worked in the sex trade industry for a very long time and fought very hard for this recognition) may very well be shattered by the current conservative political climate of moralizing and cowardice that prevails in Ottawa.
I will not dwell on the legal arguments made in the case (tempting though such an academic exercise might be for me.) Rather, I would suggest the likely political debates and the consequences of those, is where the rubber really hits the road in this contentious matter.
Suffice it to say Chief Justice McLachlin made a very persuasive case speaking for the majority of her colleagues, (though the tone of her opinion was, in parts, slightly old-fashioned, i.e. using the term prostitute instead of sex workers) when she overturned the decision of the Ontario Court of Appeals in Bedford on the grounds that the laws surrounding prostitution violated section 7’s right to personal security under the Charter of Rights & Freedoms. This means that it is unconstitutional for the criminal code to allow prostitution but not the related aspects of the “oldest profession” such as working in brothels, communicating with clients (or ‘johns’) and hiring staff (i.e. bodyguards). The court decided to lay down a suspension of sentence (as opposed to striking down the law immediately) to give the state a year in which to rewrite the laws to reflect their ruling.
Basic common sense dictates that you can’t legalize something and make almost every important element of that same thing illegal. So the reasoning and solidarity of the court in this matter should come as no surprise to any thinking Canadian with a passing knowledge of our legal system. Unfortunately, many in our current political class (and some in the media) are not necessarily capable of lucidity when discussing politically incorrect situations, such as this one.
Right on queue, Tory Ministers lined up to rail against the judgement with ultra Catholic Minister of Employment and Social Development Jason Kenney, chiming in with his outrage at the supposed judicial activism of the courts in this affair. Actually, Minister, when a court defers to the legislature by issuing a delay of a year for the latter to make sure the laws comply with Canada’s constitutionally enshrined human rights, they are acknowledging, albeit indirectly, the supremacy of Parliament.
Adding to the outpouring of callousness, was Head of State for Western Economic Diversification and blue chip prospect for blue team, Michelle Rempel, who tweeted, bizarrely that “Can’t help but feel our judiciary struck a blow to women’s safety and equality this morning. We aren’t a commodity to be bought or sold.” Talk about missing the point! Setting aside that this case deals with prostitution generally, not just female sex workers, equality in this instance must surely be interpreted as including the right of women who find themselves working in this industry, either by choice or necessity, to equal protection and benefits under the law that any other legitimate profession enjoys in our society.
Perhaps not surprisingly, the official opposition, was far more welcoming of the decision, though not entirely onboard will full legalization of sex work and all related industries. NDP Justice Critic Francoise Boivin, was hopeful that the government would use this as an opportunity to study the problem and come up with a specific Canadian solution, rather than adopting another country’s model, which would enable the law to make distinctions between those who freely choose sex work and those who are in a more vulnerable or involved in more exploitative type arrangements. As for the Liberals, they have yet to make their position clear. Odd, given that they must have anticipated the timing of the ruling.
The law (the criminal code sections dealing with prostitution) may have been deemed unconstitutional, but this doesn’t mean that sex workers are guaranteed the kind of legal status enjoyed by accountants. As a matter of fact, the Chief Justice went to great lengths to emphasise that the court was only examining the constitutionality of the law in question, as opposed to the legality of prostitution, which is legal, in any case. More worryingly, the court refused, perhaps out of sensitivity to the perception of judicial activism, to give the government any indication as to what kind of legal framework would pass constitutional muster.
Thus, it remains to be seen how the government will react to the ball being back in their court. But if their initial statements with respect to the matter reveals anything, it’s a stubborn clinging to the misconception that outlawing almost every aspect of sex work somehow makes those involved in it safer. Does anyone seriously believe that a government that failed to grasp something as obviously beneficial to the community as safe injection sites (see the Insite case) for drug addicts in Vancouver, will now see the light when it comes to the same type of logic being applied to some of the most vulnerable people in our society? More likely, that they will find some way to undermine the court’s attempts at promoting harm reduction measures for sex workers by outlawing prostitution outright.
Follow David DesBaillets on twitter @DDesBaillets.
MORE RELATED TO THIS STORY