Supreme Court of Canada removes laws criminalizing prostitution: What’s next?

I’m glad I was partially wrong in my reflections yesterday about the impending Supreme Court of Canada decision in Bedford. The Court did not follow the lead of the Ontario Court of Appeal by letting the laws pertaining to street prostitution stand. All the laws fall on the s. 7 Charter guarantee of security of the person. That seems ironic to some of us – since prostitution itself, indoor and outdoor, is the greatest threat to women’s security. But there it is. We have achieved one of our goals with resounding success: all women are now decriminalized if the Supreme Court regime stands and some of the most vulnerable women in prostitution – those who work on the streets – have not been ignored. This is a victory to be celebrated.

Analysis of the judgment itself will take time and should take time but what I will say now is that there is much in the judgment to be deeply concerned about. For one thing, the Court accepted the “social” evidence accepted by the trial judge (and by the way there was no actual “trial” – it was a Reference to the court and all the evidence was presented by affidavit). On the Reference, the evidence of those of us who know prostitution to be violence against women by definition was judged to be biased and biased in a way that actually recognized women’s inherent right to equality before the law. We needed a s. 15 challenge to these laws – i.e. a challenge on the basis of women equality – and that’s not what we got from Mr. Alan Young. I have no doubt we will make sure that future laws meet such fundamental claims on behalf of women. For now I hope that Canadians take note of the fact that while the Supreme Court did conclude that our present laws endanger women engaged in sex trade, they also clearly understood that prostitution is a “risky activity.” Perhaps legislators can be convinced to look at the source of the risk – and that would be men, the pimps and the johns.

But the Supreme Court accepted that the laws themselves endanger prostitutes, beyond the inherent extreme risks of engaging in sex trade. That poses a problem in crafting new legislation that seeks to protect women in the trade because new laws will have to stand up to further constitutional challenge on that basis. Right now it’s difficult to think of a law that would, in any way, constrain prostitution without violating such a broadly framed constitutional prohibition. But I’m sure the independent women’s movement will think our way through these difficulties.

Right now the problem is the one we’ve had since the day that Young and his client pressed forward with the challenge to the laws as they stand. That is that the finding of the Court necessitates new legislation and the government that will craft that new legislation is Stephen Harper’s. It’s clear from the resolution adopted by the CPC at their latest convention that they will not leave the field empty. They appear to be committed to criminalizing pimps and johns while leaving women decriminalized in a fashion that looks very similar to the Nordic Model that we support. As I said previously, I have trouble believing that the most socially conservative government Canada has ever had will actually follow through with this kind of legislation. We will have to watch carefully and pressure them to do so, and to do so without capturing activities that constrain a broader set of civil liberties while not doing the job of protecting women, which ought to be the goal. Let’s not forget their new cyberbullying legislation that criminalizes stealing cable tv signals, for example… This could be a rather large problem given that the CONs are not apt to let us see the legislation – all the legislation – before it’s presented to Parliament.

The further difficulties that this neoconservative government presents are fairly well known: Their defunding of and lack of support for the social services that assist women in exiting prostitution; their stubborn resistance to the claims of Indigenous people, especially Indigenous women who are overrepresented in the trade and as victims of violence along with resistance to programs sensitive to the special problems of immigrant women and Asian women working the trade hidden “indoors;” the dismantling of government-supported healthcare programs and the privatization of social services that then do not deliver adequately to women living on the social and economic margins; the exacerbation and deepening of economic sex inequality that leaves too many women without well-paying and secure work and unable to provide for themselves and their children.

These issues are not new. Nor is the willingness of neoliberal society to let victims of socioeconomic and political inequality fall by the wayside, perhaps particularly when they are women. It’s unclear to me that either a Liberal or a New Democrat government would do better and there is some tragedy in that. The decriminalization of women without the criminalization of pimps and johns is unacceptable. A lack of political commitment to reducing social and economic inequality is equally unacceptable. There is no party in Canada today that stands clearly for both these principles. Perhaps it’s time we had one?


Elizabeth Pickett is an internet-based feminist freedom fighter, a mother and grandmother, a blogger, and a poet, seething in Winlaw, B.C.

Meghan Murphy
Meghan Murphy

Founder & Editor

Meghan Murphy is a freelance writer and journalist. She has been podcasting and writing about feminism since 2010 and has published work in numerous national and international publications, including New Statesman, Vice, Al Jazeera, The Globe and Mail, I-D, Truthdig, and more. Meghan completed a Masters degree in the department of Gender, Sexuality and Women’s Studies at Simon Fraser University in 2012 and lives in Vancouver, B.C. with her dog.

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  • I am considering killing myself bc the gov considers the commercial rape trade a non issue.

  • rbd

    What we’re hearing this morning is the pro-prostitution side, almost entirely. In reports I’ve heard and read in msm, we are a tacked on sentence at the end oh there’s this other side don’t pay any attention to them. A brief clip from Kim Pate. The women they are quoting cannot possibly have been “sex workers” according to the quotes flying across the country on CBC this morning, this is going to make prostitution a safe, respected job option.

    This month four women I know lost their jobs. They were among hundreds, mostly women, let go by the same employer. Women with masters in biochemistry, with masters in english who wrote speeches for uni presidents. Another employer here let go 700, again, mostly women. Down the road, a third employer, several thousand got notice. The only places that are hiring are the sexual exploitation industry. Strip bars and “gentlemen’s” clubs are going up on the periphery of every new and older suburb.

    The true story of prostituted women is being erased by our media. I implore you, please comment not only on our feminist blogs and sites, get your voice out there on MSM, post the truth for the readers, even if you are the only one on the threads. Ignore the punters, they are there by the hundreds. Tell the truth because we are the only ones doing it and the public isn’t getting it anywhere else.

  • rbd

    MSM is a sewer. It’s all male. I do not see any female voices there countering this, and the all male commentary support unfettered access to women’s bodies, lined up cleaned up and ready for them to work out their privileged, male right to access to our bodies.

    One of the major stories featured a quote from a ‘sex worker’ saying legalisation has been proven to increase violence. The reporter did not question this.

    Although it’s not a good feeling we do have to get out there with the facts. I’m sorry, but commenting only on our blogs, FB and twitter is not reaching the public.

    I appreciate this article and all the others breaking it down, providing the facts and myth-busting that we use out there.

    But please sisters, help out by talking it up online and in real. We need your voice.

  • rbd

    The callers on Cross Country Checkup today left me with a bit more hope. They were definitely more thoughtful, not just yay booya!

    For anyone wanting to listen: download MP3.

    ~At 30 mins past program start: Kim Pate of the Elizabeth Fry Society.
    ~At the one hour mark: Julia Hughes, Associate professor of law at the University of New Brunswick in Fredericton.
    ~At one hour fifteen mins, a john, with some helpful comments, actually.
    ~At one hour and 30 mins: Janine Benedet, Associate Professor, Faculty of Law, University of British Columbia and the Director of Feminist Legal Studies at the University of British Columbia

    If Trisha Baptie, Bridget Perrier, Cherry Smiley were on, they weren’t official guests.

    So far, the only interviewee, anywhere, for the side of exploited and prostituted women was Hilla Kerner, in an obscure publicaion I’ve never heard of.

    The exploited women are ignored. Could it be, they don’t have a publicist?

  • martindufresne

    You write: “…all women are now decriminalized if the Supreme Court regime stands and some of the most vulnerable women in prostitution – those who work on the streets – have not been ignored.”
    They certainly haven’t, although I expect that few will be dancing in the streets if this pimps-and-brothel friendly decision isn’t challenged by new legislation…
    The Bedford decision is for brothel-owners and various types of third-party profiteers a.k.a. pimps (e.g. escort agency owners): it doesn’t do a thing for street-prostituted women, that is women who need to make money fast and who are too damaged for brothel-owners to select. Indeed, it will worsen their condition.
    This is not merely a matter of opinion. In the original judgment ( that was affirmed by the SCC, Judge Himel took pains to point out at the end of her decision (sections 473 and following) all the OTHER criminal laws, municipal licensing policies and rstrictions, that are being used and will continue to be used against any street-prostituted women. And need we be reminded that it is mostly through municipal by-laws – not the Criminal Code – that these women are harassed by cops away from whatever area city fathers want to make off-limits, be that outdoors or indoors.
    So, thank you for nothing and please, don’t rejoice too fast. Indeed, one can expect that street-prostituted women will be under even more pressure to dsappear from view from cops and haters now that there will be “houses for that”…
    We were lied to with the safety plea.

    • People should know where many of the damaged prostituted women come from. Many are created by the system, start out healthy, pretty, desirable, begin making some money on the side, yes maybe for tuition but soon find they have to do men they don’t want to do, or accept behaviours and do things they don’t want *Dupre had to let Spitzer choke her that’s how he likes it, work when they are ill, take drugs, pay some debts and need more work so find a “facilitator” and trisk becoming “damaged”, lose their punters, and end up on the streets. It’s like with prostituted children, punters don’t want to acknowledge the 18 yr old started out there.

      • A self described happy prostitute on Xcountry checkup said several times how much she likes her work, has been doing it more than a decade, has a university degree, indeed first had an orgasm when working. Wow eh? However her good-for-me story was belied by the cynical, so-there tone of voice, resentment for something, reeking of getting even with someone by this ‘happiness’. For those few minutes of her call in, I realized this is what she tells the johns, who will believe it, and what she tells herself. But her tone of voice gave it away: she’s not convinced.

  • From what I have read the judgement hinges on two factors. The first, is that prostitution is legal. If prostitution were illegal that completely negates the judgement. For example, drug dealers cannot demand safety for their trade.

    The second factor is the purpose of the existing laws. They were directed at the social nuisance of prostitution. Social nuisance was weighed against the security of prostitutes pursuing a legal profession.

    The purpose of the Nordic model is to protect women, not control a social nuisance. Using a prostitute, or arranging for someone else to use one, becomes illegal.

    My primary concern is that Harper will reject the Nordic model and fully criminalize prostitution.

  • Rush

    so in the Nordic Model, if a man has sex with a prostitute and refuses to pay her or takes his money back, he is abiding bythe law. hmm

    • Meghan Murphy

      No. Under the Nordic model, if a john refuses to pay, the prostitute can call the cops and they will actually charge the guy (and won’t charge her).

    • Laur

      No. That’s rape.