I’ve had a couple of reader requests that I post about the Ontario Superior Court of Justice’s striking down of the provisions of the Canadian Criminal Code that currently regulate prostitution. I’m impressed that Americans are actually interested, for once! I’m actually still in a bit of a tight spot this week, bloggingwise – I am actually not sure that this will let up before the end of October. So these are brief remarks. I can’t seem to locate, quickly, an online copy of the decision, so I’m running with the media reports here. Further, I am no expert in criminal law and Charter analysis thereof, and I also am only slowly easing back into understanding the current Canadian political atmosphere. But here are some things I think it’s worth keeping in mind:
- Prostitution was not, even before this ruling, in the strict legal sense, a crime in Canada. The provisions that were struck down criminalized the “keeping of a bawdy house,” “communicating for the purposes of prostitution,” and “living on the avails of the sex trade.” So, in essence, these were provisions that were regulating – with the relatively harsh power of criminal law, but we’ll talk about that in a second – the provision of sex for pay without actually criminalizing the act itself.
- It seems to me that the latter two provisions in particular came awful close to making prostitution outright illegal, in the sense that it is impracticable without committing a crime, under these constraints – you need to live off the proceeds, and also just to be able to talk to people about the subject, to conduct sex work. So while #1 is technically true, it is, even in the abstract, kind of hypocritical for people who think this ruling is bad to claim that these provisions were merely “regulatory.” They imposed criminal penalties on inescapable aspects of prostitution.
- The argument that was made by the litigants in the case – three sex workers represented by York University law professor Alan C. Young, a prominent Canadian constitutional scholar – was that these provisions threated, in the end, their rights to freedom of expression and security of the person. Personally I think I find arguments as to the latter a more compelling rationale to strike down the provision, as I think the best way, for sex workers, for these provisions to be evaluated is not on a strict “free speech” basis, but rather on the basis that if they are, as people are claiming, there to safeguard against abuse of the people engaged in the sex trade, the primary question is whether or not these provisions are making everyone safer the way they are claimed to.
- For all the philosophical argumentation about policy options when it comes to the regulation of prostitution, this was a case, from what I can tell, decided on a factual record of whether or not these provisions were protecting sex workers from abuse in the way they ought to. And frankly, even in abstract, large-brush-stroke terms, this quasi-criminalization of prostitution has not resulted in higher safety for sex workers in Canada. For cripes sake, ours is a country in which a serial killer managed to kill 50 sex workers in the Vancouver area before the police could be bothered to look into it.
- The Conservative government has announced that they plan to appeal. I can’t, actually, imagine why any progressive worth their salt would support them in it, even if they do, like I do, have misgivings about sex work philosophically. I’ve said it before and I’ll say it again: if you are a feminist, you have to, as part of that ideological commitment, be skeptical of the state when it’s claiming to come to the defense of “women,” because traditionally, whenever the state’s tried to protect our honour, it’s done so without our input. Which never results in excellent social policy. Americans are fond, of course, of claiming that Canadian Conservatives are much less virulent than Republicans, at least as far as social conservatism goes, and while that’s somewhat true, it still doesn’t mean that the Canadian Conservatives can be counted as “Friends of Women” or anyone else who isn’t a white straight guy from Alberta, frankly.
Feel free to discuss in the comments.