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The Supreme Court Has Struck Down Canada’s Prostitution Laws. Now What?

The decision calls for a new approach, but we don't have high hopes for the Harper government.

The Supreme Court of Canada building. Photo by Flickr user Robert Linsdell.

In the wake of the Supreme Court of Canada’s unanimous decision in Canada (Attorney General) v. Bedford striking down Canada’s prostitution laws, the internet predictably went nuts. In part, this was because some people find it amusing to make jokes about sex work—especially in a year when, thanks to the ongoing Rob Ford drama, the words “prostitutes” and “Canada” have been in international headlines. But it was also because people were reacting to the idea that this might mean a radical change in Canada’s legal approach toward prostitution.

Certainly the decision, as written by Chief Justice McLaghlin, is clear in that a new approach is required: Canada cannot, at the same time as the act of prostitution is itself technically legal, have criminal laws in place that effectively force sex workers to undertake their work in dangerous ways (by making it illegal to operate a bawdy house or brothel where they might work more securely; by making it illegal to communicate in public about sex work, limiting opportunities for sex workers to ask questions of prospective clients—questions like “Are you a violent murderer,” for example; and by making it illegal for a person to live off the avails of prostitution, thus also making it impossible for a prostitute to hire a proper bodyguard if that’s what is desired). This was the point of the case, and Justice McLachlin says as much within the first two paragraphs of her decision:

These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not.

And so the Supreme Court gives Parliament one year to rewrite prostitution laws in Canada, and this is where cynicism must set in—because the Supreme Court really had no other realistic option in this case other than to allow Stephen Harper’s Conservative government the opportunity to rewrite prostitution law.

The prospect that perhaps Canada might pursue a sane, grounded, and realistic approach to minimizing the dangers of sex work—both to its practitioners and its clients—seems frankly elusive, because you have to ask yourself: Do you really think Stephen Harper’s Tories are going to do that? Really? A party whose right-wing base, furious that ITS socially conservative ideals have not been upheld by its leadership, is now going to work to protect the rights of prostitutes?

Remember that McLachlin was quite clear: the decision in Bedford does not say that prostitution itself must be legal. All it says is that while prostitution is legal, it must be regulated fairly and with respect for the rights of prostitutes. So which seems like the simpler option: undertaking the complex and difficult task of writing fair laws that will effectively regulate sex work without impeding the rights of its practitioners, or simply banning it entirely? Obviously, the latter is the easier one, especially from the point of view of a majority government with little investment or interest in upholding the rights of citizens who—let’s be honest—will never be part of its base, and whose base in fact is at least in part opposed to upholding those rights.

Let us simply say: if there is a chance at something better here, it is only a chance—and probably not a great one.


  • tyrannosaurus_rek

    Someone should whisper in Harper’s ear that if prostitution is legalized, tar sand workers will be more productive.

  • wklis

    We can cuddle for warmth when the power goes out.

  • Duckworks

    Please do not use the ludicrously PC term ‘sex worker’ when referring to prostitutes. And, unlike drug policy, there is really no effective harm reduction policy for prostitution–legalization only makes things worse. Prostitutes in Nevada brothels are defacto slave labour, and the Netherlands and Germany have seen greatly increased human trafficking, as well as violence against prostitutes. This is not harm reduction; rather, the result is harm escalation. The sexual abuse and slavery of human beings is not a laughing matter. The Conservative government needs to completely ban all sexual trafficking, including currently legitimized prostitution front enterprises like escort agencies, rub & tugs, and strip clubs.

    • Geoff

      So people should stop using a valid and accurate phrase just because somebody doesn’t like the phrase? That is a perfect example of political correctness being taken to far.

  • Mullah_Kintyre

    The fear-mongering, from those who still believe the white slavery paranoia from 100 years ago, is unfounded and ridiculous. The baseless propaganda from the prohibitionists (Janice Raymond, Melissa Farley, Richard Poulin) was exposed as fabrications and exaggeration in the original Himel decision that was eventually upheld unanimously by the Supreme Court.

    Yet real large scale studies, like the one in New Zealand over their first five years of decriminalized prostitution, while certainly not claiming it to be a panacea, did dispel all of the unfounded fear-mongering, including finding no evidence linking the country’s sex trade to human trafficking.

    And, also like the New Zealand study, this one from Queensland Australia debunks the stereotype that most sex workers are drug addicts, or otherwise disadvantaged victims with no other choice.

    Canada’s federal government was desperately defending the status quo, which is a blatantly dishonest and quite possibly corrupt system of pretending to outlaw sex businesses while almost entirely tolerating (and often licensing them at the municipal level) them as “escort agencies” and “massage parlours”.

    When they had the same circumstances, Australia found vice cops routinely accepting bribes in Queensland and New South Wales.

    As MP Tim Barnett asked those claiming to defend “morality” during the final debate that led to decriminalization in New Zealand:
    “The state licenses massage parlours, knowing they are fronts for prostitution…there is no morality, no consistency in that.”

    BTW, Conservative MP Joy Smith is a great example of how disingenuous or gullible the anti-sex prohibitionists are. When she was on radio a couple weeks ago attempting to explain her proposal to ban porn on the internet, she talked about how 14-year-old boys using the internet were ACCIDENTALLY seeing porn, which caused every reasonably sane person listening (including the guy conducting the interview, Jim Richards) to laugh at her.

  • hookstrapped

    Contrary to the assertion below that there is no effective harm reduction policy for prostitution, the experience of New Zealand shows that there is. Here’s an overview

    And here is the full report

    My own experience in the Dominican Republic showed me that the myths and mis-representations commonly circulated about prostitution don’t withstand scrutiny when talking with active sex workers.

    If the Canadian government involves, talks with, and learns from active sex workers (whose knowledge and experiences are routinely ignored by legislative bodies), Canada has a good opportunity to create a regulatory framework that not only protects the health and safety of sex workers, clients, and the public at large; but one that also minimizes public nuisance concerns and works against trafficking and underage exploitation by allowing those with knowledge of such practices to step forward without fear

    • Matt The Golem

      The Harper gov’t has shown no interest in using research or popular opinion when enacting laws. Just look at the tough stance they’ve taken against cannabis use.
      Another big problem is that many sex workers (and their clients) go about their business in anonymity and are not willing to speak out publicly.

  • Matt The Golem

    Prostitution is so much more prevalent than most people realize. Every downtown hotel has sex workers going about their trade without bothering anyone. Every new condo tower near the Rogers Centre has at least one prostitute or agency renting/leasing a unit. So what I’d like to know is: what exactly will the Harper government do to criminalize this activity? They can’t make consensual sex between adults illegal. And as far as I know, there’s not going to be a law against giving money to another person.
    So how can they take these 2 legal acts and combine them into an illegal activity?

  • randy deresti

    You can make whatever f’ing laws you want its not going to do a g-dang thing. So either come up with a new system or keep filling Harpers new Supermax prisons with victims.

    • Mark Ruddock

      So then the same logic applies to Canada’s ridiculously onerous gun laws? Like how I can do prison time for not renewing my firearms license on time? I guess we should repeal The Firearms Act too then? For (small-L) liberals, de-criminalization seems to work for everything from prostitution to marijuana possession, but when it comes to innocent paper crimes committed by gun owners, it’s criminal charges, no leniency and no questions asked.

      • dsmithhfx

        Prostitutes and marijuana aren’t generally considered dangerous weapons…

      • OgtheDim

        Yes, because of course, its only small c conservatives that are against gun laws and small l liberals that are for marijuana possession.

        You need to get out more.