Elin Sigurdson’s article (with Katrina Pacey) is featured in this month’s BarTalk “Sex Workers’ Rights and Bedford v Canada.“
While exchanging sex for money is legal, it is hard to do it without running afoul of the law. You can’t work indoors, communicate in public about it, or engage any security staff without violating the Criminal Code. By challenging these laws, three Ontario sex workers have had an extraordinary effect on constitutional and criminal law in Canada, and have sparked an important debate about the law’s effect on the safety and rights of sex workers. Terri-Jean Bedford, Amy Lebovitch and Valerie Scott’s case is now headed for the Supreme Court of Canada where the court will have a chance to address the effect of the laws on some of our most marginalized citizens.
The case was a total victory at first. Justice Himel of the Ontario Superior Court, in a decision grounded in evidence from Canada and abroad about the extreme harms faced by sex workers, held that the provisions restricting indoor sex work (or “bawdy houses”), living on the avails of prostitution, and communicating in public for the purpose of prostitution were unconstitutional.
Mixed results followed on appeal. In March 2012, five justices of the Ontario Court of Appeal upheld Justice Himel’s ruling that the bawdy house provision is unconstitutional because it prohibits sex workers from working in safer indoor locations. The court also held that the living on the avails provision, which prohibits retaining staff to improve security, is only constitutional if applied to exploitive circumstances.
However, the court was divided on the constitutionality of s. 213(1)(c) of the Criminal Code, which prohibits public communication for the purpose of prostitution. Three Justices upheld the provision, finding that while the communication law negatively affects the physical security of sex workers, the purpose of reducing social nuisance outweighs the effect on sex workers’ safety, and therefore did not violate principles of fundamental justice. The majority’s conclusion provides little hope to street-based sex workers, who are among the most vulnerable members of our society.
Two dissenting Justices would have held that the law’s harmful effects on sex workers are grossly
disproportionate to its intended purpose of reducing public nuisance. The dissent, exposing the contradictory reasoning of the majority, said that if the bawdy-house and living on the avails provisions cannot survive the balancing test, “then the communicating provision, with its equally serious – and perhaps worse – effects on prostitutes’ rights to life and security of the person, should not survive it either.”
Upholding the communication law means sex workers whose poverty and other circumstances have led them to work at street level will continue, through their criminalization, to be subject to extreme dangers and harms. They will continue to be relegated to isolated and dangerous locations, deprived of the opportunity to take steps to screen clients and access police protection. Sex worker groups such as Vancouver’s Downtown Eastside Sex Workers United Against Violence Society, intervenors in the Bedford appeal, are hopeful that the Supreme Court will give due weight to the serious and sometimes fatal harms caused by this provision.
Left to right: Elin Sigurdson practices aboriginal and constitutional law at JFK Law Corporation and Katrina Pacey is a partner at Ethos Law Group LLP and the litigation director at Pivot Legal Society.
This article was published in the June 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.