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