Not Off the Hook (Ontario’s Bedford Decision and Questions of Social Justice)

1. Emancipation for Some

That the Ontario Court of Appeal’s recent Bedford v. Canada decision, which effectively legalized brothels in Ontario, was going to provoke heated debate and trigger intense emotional reactions was a foregone conclusion. Prostitution is an issue so charged with moral implications for some and questions of freedom and safety for others that it’s not surprising that it was hailed as both an important legal victory as well as the embodiment of ultimate evil for women working as prostitutes.

Valerie Scott, one of the litigants, remarked upon the decision being made official, “I feel like a citizen.” Similarly, Terri-Jean Bedford, a working dominatrix and the namesake for the case, offered the especially jubilant comment, “It’s like emancipation day for sex-trade workers.”

On the other hand, detractors have lambasted the decision as exacerbating certain evils. Women Against Violence Against Women (WAVAW), a rape crisis centre located in Vancouver, stated in a press release concerning the decision,

We continue to see courts, discussions, and society at large shift away from addressing the real and underlying problem: men’s demand for sex from women. The changes from the court decision will not provide more respect from women.

Women will continue to go missing and be murdered, if there is no real work being done to aid women. Social programming and funding into women’s services are what is needed. Hiding women from plain sight to create a false sense of safety in community is not the answer.

Bedford has also in some cases made adversaries out of current and former sex workers. The National Post shared the story of Bridget Perrier, a former prostitute:

Bridget Perrier, 35, tearful and angry, held up a metal coat hanger that was twisted into a baton, saying it is known on the street as a “pimp stick” — often heated up under a flame and used to whip and beat prostitutes.

If Ms. Bedford represents the sophisticated end of the sex trade, then Ms. Perrier the bottom of it — coerced into the sex trade at the age of 12, recruited from a group home, she was flown around Canada by her pimp to service men hungry for child sex, she said.

These detractors, whatever one may think of their position on the decision itself, bring to light an important issue. For women like Bridget Perrier, the court has forgotten about the very real women who exist beyond the abstract legal questions addressed in the case at hand. The court failed to consider the stories of social and economic hardship and abuse that led many women into the trade in the first place and serves as a constant obstacle to their leaving prostitution. Prostitution, in the view of many critics, is nothing more than a manifestation of gender-based norms that permit women to be treated as property or objects for the sake of male gratification. A decision giving legal sanction to such a practice only normalizes and reinforces such brutal realities.

I don’t wish to address the moral questions underlying prostitution here, but I do want to acknowledge that the prostitution issue is underpinned by a series of important questions concerning social justice. That many women working in the trade have resorted to it as a result of economic desperation and are looking for a way it is something that cannot be denied. That many prostitutes, simply because they bear that title, are considered less than human and acceptable targets for abuse and violence is another brutal reality most recently brought home by the Robert Pickton murders.

For those concerned with such questions, however, objection to Bedford misunderstands the reasoning behind the decision as well as the impact it makes in terms of policy. While acknowledging the aforementioned realities of many in the prostitution trade in Canada, it is important to also understand the bearing that this decision and the judicial branch in general has on these questions. It is indeed the case at this point in time prostitution is on its way to legalization in Canada – an appeal to the Supreme Court is inevitable, so there are some uncertainties concerning the final result – but the decision does not in any way, critics should note, let us off the hook with regard to questions of social justice.

2. Correcting Legal Absurdities 

Though the effects emanating from the Bedford decision appear to have significant consequences, the long-term effects of this case do not begin and end with a judicial decision. Bedford is best categorized among a particular type of decision that leaves legislative bodies with a considerable amount of freedom in crafting policy that will conform with the decision in question.

What the court was asked to do in this particular instance was assess to constitutionality of three provisions in the Criminal Code. The provisions were as follows: S.210, which prohibited the operation of brothels or bawdy-houses; S.212 (1)(j), which prohibited living off the avails of prostitution, which in turn prevents sex workers from hiring bodyguards, drivers, etc.; and S.213 (1)(c), which prohibited communicating for the purposes of prostitution. The last provision had previously been ruled on by the Supreme Court of Canada in a previous Prostitution Reference, entailing that lower courts could not overturn that ruling. The first two provisions, however, were fair game.

In my reading of the case, the decision turned on one crucial fact, namely that prostitution was already legal in Canada, though one could not hire a bodyguard or operate a brothel, among other prohibitions. This provided the context for the court to make its decision and I think it is fair to say that the outcome would have been different had prostitution been illegal. This is made explicit in the decision:

Parliament has chosen not to criminalize prostitution. In the eyes of the criminal law, prostitution is as legal as any other non-prohibited commercial activity. A claim that a criminal law prohibition increases the risk of physical harm to persons who engage in prostitution must, for the purpose of the security of the person analysis, be examined in the same way as any other claim that a criminal law prohibition increases the risk of physical harm to persons engaged in any other lawful commercial activity [123].*

Essentially, though the profession may be dangerous, it is in fact legal, making those who engage in it entitled to the rights of the Charter of Rights and Freedoms, namely the right to security of the person. Parliament, however, had enacted laws that created dangerous risks for those engaging in a perfectly legal act. It was the conclusion of the lower court judge, who assessed 88 volumes of evidence, that these provisions prevented sex workers from taking precautions that might make their work safer, and the Court of Appeal agreed. The evidence led both courts to conclude that the ability to provide services from a controlled, indoor location was safer for prostitutes. In addition, it was concluded that the Criminal Code prohibition on living off the avails of prostitution was over-broad, criminalizing anyone who might be employed by a sex worker, whether or not the relationship was exploitative [221].

What the judiciary corrected in this decision was a legal absurdity. Many professions are dangerous, but there are always measures taken to ensure the safety of those engaged in any such profession. The laws regarding prostitution, however, were essentially analogous to a prohibition on hardhats or safety-goggles in the construction industry. By only exacerbating the risks of an already dangerous practice, Charter rights came into violation and the judiciary saw fit to issue a correction.

This being the case, the implications of this decision are decidedly narrow and may even be short-term. The decision makes no comment upon the moral or social questions related to prostitution, nor do they comment upon the wisdom of keeping prostitution legal or engaging in the profession. It is perfectly possible for a law to be made tomorrow that outlaws prostitution altogether, though I would hope that by now we might have learned some lessons from history about the effectiveness of outright prohibition. Nonetheless, what this decision amounted to in the immediate sense was the Court decreeing that if individuals are entitled to engage in a particular profession, then they are also entitled to safety in doing so.

3. Still on the Hook

The most important sentence in the entire decision reads, “…we do not mean to understate the complexities and difficulties of the social problems associated with prostitution. However, these complexities ad the many legislative responses to them are not germane to the question at hand [135].” Matters of social justice did not engage the Court in the case at hand. Furthermore, the form that the decision will ultimately take as policy is a matter left to the legislative branch at at all levels. Licensing and zoning by-laws regarding the location of bawdy houses will be left to Parliament and municipal governments. Even the often discussed Swedish Model remains an available policy option.

Where the social justice questions are concerned, they remain urgent but essentially unaffected by this decision. The circumstances that many detractors of the decision have noted as the driving forces of the sex trade are primarily matters of socio-economic factors, issues of gender and violence, and preconceived notions about sex workers themselves. WAVAW notes the socio-economic driver of sex work in their detailed report on prostitution, a report well worth reading in its entirety:

…most women in prostitution do not become wealthy or personally empowered through their involvement in the industry. It is well known that managers/pimps can and do take in considerably more money than the women are able to keep for themselves. Women have little if any control over what they do and with whom. Some are left with no money for themselves (p.14).

The report adds that prostitution is the result of broader issues that go beyond legal matters:

The focus on legalistic arguments has shifted attention away from the socio-economic conditions of women’s lives, lack of equality and the restructuring of economies into neo-liberal market structures. Decriminalization or legalization of the industry of prostitution will promote the industry, increase profits from exploitation of women and children and will further objectify women in our society. Those changes will not provide more respect for women or greater safety and protection by police. As it stands, the criminal justice system responses to violence against women are limited at best, even when women are not criminalized (p.22).

Whether or not one agrees with the finer points of the argument made in WAVAW’s report, it is certainly true that legal solutions are not getting to the root cause of the harsh realities that plague the lives of many in the industry. Social programs, rehabilitation programs for victims of abuse, and measures to curb abuse and exploitation remain on the table for lawmakers across Canada. The results of this decision and addressing the cultural, social, and economic issues surrounding sex work are not mutually exclusive.

These issues have always been in the legislative domain and continue to be so. Many might argue that they have been ignored for far too long. Nonetheless, Bedford does not let us off the hook with regard to the important questions raised by critics. Bridget Perrier is not an isolated case, but one woman among many who are victims of unimaginable circumstances. These women are not necessarily harmed by the Bedford decision, which will allow women currently on the street who wish to remain in the sex industry to do so in the safer manner, but it certainly does not address their plight, nor was it meant to.

Education, community leadership and engagement, and smart and effective social policy will be key to addressing the social justice concerns surrounding sex workers in Canada. These things will not come simply and they will not come fast, but they remain urgent and have not been hindered by Bedford. The constitutionality of certain provisions in the Criminal Code and matters of social justice where prostitution is concerned are two entirely separate issues.

A constitutional question was brought to the Court and it made its decision accordingly, whether one agrees with the reasoning therein or not. To see this as a decision that is pro-prostitution or supportive of the circumstances that lead many into prostitution or prevent them from leaving the trade is to completely misunderstand the role of the judiciary in this case and the decision itself. Recall that the Court made no comment upon the morality of prostitution nor did the decision broach matters or social policy.

The Court made a constitutional decision and one that I feel was sound. The decision did not in any way let Ontario or Canada as a whole off the hook with regard to women’s rights and safety, issues of gender and violence, and social justice. Those who interpret Bedford as further entrenching the aforementioned injustices will be the ones complicit in allowing those injustices to continue.

* Citations from the decision refer to the paragraph number in the official decision, which can be found here.

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