On Dec. 20, 2013, the Supreme Court of Canada ruled three sections of the Canadian Criminal Code regarding prostitution to be unconstitutional. The resulting one-year allowance period to rewrite these laws has sparked debate across the country on the matter of prostitution and its regulation.
In the Bedford vs. Canada case of 2007, three sex-workers challenged three sections of the Canadian Criminal Code regarding prostitution: the Bawdy-House Law, which prohibited prostitutes from using a space repeatedly for work; the Living on the Avails Law, which criminalized those who had work-related relationships with prostitutes; and the Communicating Law, which made it illegal for prostitutes to communicate about their work in a public place.
Sex workers argued that because prostitution itself was legal in Canada, these peripheral laws were infringing upon their freedom and endangering them by not allowing them certain practices such as working in safe and familiar places, filtering through their clients, and hiring bodyguards.
On Dec. 20, the Supreme Court ruled the three laws to be unconstitutional.
“They decided that all of those things made prostitution riskier and more harmful to women and was not consistent with the principles of fundamental justice,” Christopher Manfredi, dean of Arts and Political Science professor at McGill, said. “The court is in some sense saying, we should treat prostitution—at least as it’s practiced voluntarily by adults—like any risky work and not have regulations that increase the risk.”
Following the decision, the Supreme Court gave parliament a one-year period to decide on a new framework of laws on sex work. Since then, there have been various suggestions for approaches regarding this issue.
“Some people are afraid that the government’s response will be to criminalize prostitution itself,” Manfredi said. “I don’t think the government will go in that direction […] because [that] is very difficult to enforce and would be a step backwards from where we are now.”
In their documentary “Red Light Green Light,” directors Jay and Michelle Brock argue the importance of considering the impact of legalization on human trafficking.
“There seemed to be one critical piece missing from the whole discussion [on prostitution] and that was trafficking prevention,” Michelle said.
Michelle argued for a model of institution which would criminalize pimps and patrons of sex work, while decriminalizing those who sell sex, such as prostitutes. This is similar to the Nordic model that Sweden currently implements.
“While some people may gain from the removal of the provisions, for others who are more vulnerable and don’t have bargaining powers, the removal of the anti-prostitution laws might be harmful because it skews the power dynamics in favour to those who can exploit them,” she said.
However, Manfredi said the Nordic model would not be a good choice for Canada.
“It seems to me that embracing the Nordic model, as I understand it, is a step backward from where we are in Canada, where the exchange [of sex] is completely legal,” said Manfredi. “It seems like the women in the Bedford case were actually fighting to make their activities more legal and more able to be pursued in the open.”
Beth Gowing, a current graduate student at Université de Montréal, has researched sex trafficking for over two years. She argued against the complete legality of sex workers.
“What happens when prostitution is fully decriminalized is that governments will try to put in place security techniques such as red light districts, but the danger is that there would be no real way to regulate sex trafficking, and it would be even more disguised,” Gowing said. “Statistically, in countries such as the Netherlands that have legalized prostitution, the sex trafficking rates have skyrocketed.”
Manfredi encouraged students to research and understand potential directions in which the laws could be changed.
“The court is open to many different options, and students should contribute to the debate and make their opinions known,” he said.
Gowing agreed, noting the importance and relevance of the issue of human trafficking to students.
“It can happen to anyone, and anyone is vulnerable,” she said.