Court says you can't talk about sex (work), baby


As published in Huffington Post Canada.  According to the latest decision by the Ontario Court of Appeal, sex workers now have the right to hire security and work in organized brothels, though communication for the purposes of prostitution remains a criminal offence.

The decision came today after years of challenging the laws surrounding the sex trade industry in Canada.

A suit, launched in 2007 by Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott came to its end today after three appeal judges, David Doherty, Kathryn Feldman, and Marc Rosenberg formed a majority opinion on the case and struck down two of the three laws being appealed by the government of Canada.

The ban on bawdy houses (Section 210) was struck down along with Section 212, the law that deems it a criminal offence to live off of the avails of prostitution. Section 212 will now solely apply to pimps or people exploiting sex workers for their income.

However, communicating for the purpose of prostitution remains in full effect in order to keep sex work off the streets and away from public scrutiny.

Michael Morris, who represented the Attorney General of Canada said, "the harm being caused is not by the state. The state is not the agent of harm." He added that "the purpose of these laws is to discourage and deter people from engaging in these activities."

Sex work advocates argue that the criminalization of communication for the purposes of prostitution increases the risks for sex trade workers in our cities. In fact, many advocates claim police crackdowns on prostitution often pushed women to work on the city's outskirts and placed them in secluded and dangerous areas at the hands of murderers like Robert Pickton.

In an interview with Sex Work Halifax about the appeal case, Terri-Jean Bedford said: "It was incompetent and unethical for the federal government to appeal the decision so rapidly after it came out. They announced the appeal less than three hours after the decision was released. By all accounts they were unaware of the release and were caught unprepared. It shows they took the matter lightly and just want it to go away despite the alarming comments from Judge Susan Himel. It shows some narrow and simple minds at work."

"I'm disappointed," said Rene Ross, executive director at Stepping Stone in Halifax, N.S., a sex work advocacy and support group. "I work mostly with street-based workers and their lives are still at risk."

Ross has seen the increase in violence over the past few years and believes sex worker should have the right to practice their jobs safely.

Now that the Ontario Court of Appeal has reached its decision, there remains the possibility of an appeal at the federal level and challenges in various provinces.

One of the things left to be debated is whether or not communication for the purpose of prostitution leads to increased safety for street-based workers and whether the ban on communication poses a constitutional challenge to the security of people engaging in prostitution.

"We are please that the Court of Appeal upheld Justice Susan Himel's decision but we are distressed that Section 213 c., the law that bans women from communicating for the purpose of prostitution remains in place. We believe that it is unconstitutional," said Nikki Thomas, executive director of the Sex Professionals of Canada (SPOC). "Street-based workers are the most vulnerable and have no access to security under these legislations."

Thomas says she has no doubts that the Supreme Court of Canada will be picking up the case and appealing Monday's decision.

"If the government does not appeal the decision, I will probably explode with surprise," she said. "It's not just one government that is involved. All three levels will have to be involved since municipalities are in charge of licensing and regulations, provincial looks after health care and the federal level is in charge of the Criminal Code. We absolutely demand to be part of that discussion."

Though Thomas says her team is pleased with the decriminalization of common bawdy houses, she does not believe Canada will see a resurgence in brothels if the law is struck down by the Supreme Court of Canada in a later case.

"Any sort of public nuisance or commotion is likely to incur other problems. Law enforcement officers have the right to stop things based on indecency. This only means that sex workers will continue to be good neighbours. Just average Canadians who pay their taxes and try to get through the day by doing their job."

SPOC has been supporting the complainants in this case since the very beginning in 2007.