With the momentous decision from the Supreme Court on December 20, Canada’s highest judicial authority confirmed what sex workers had known for many years: three of the laws restricting our trade were unconstitutional, and were decisively struck down. In their ruling, the Supreme Court of Canada left no doubt that these laws were not only ineffective, but dangerous; the SCC also told Parliament, in no uncertain terms, that watered-down versions of the same laws would not be acceptable replacements.
The court included a one-year stay of proceedings before the existing laws are to come off the books, ostensibly for Parliament to draft new laws. I have already written extensively on the Five Fatal Flaws of the Abolitionist Approach, and why criminalization of the clients is unwise. Further to that point, it is my contention that no new laws are required. The existing provisions of the Criminal Code of Canada are more than adequate to allow law enforcement to target the more harmful circumstances connected to prostitution, while simultaneously allowing consenting adults to do as we choose in the privacy of our own homes.
When it comes to prostitution, there are three aspects of sex work that the public finds most intolerable: the exploitation of children and youth, illegal trafficking in persons against their will, and disruptive displays of sexual solicitation. Each of these aspects are adequately covered by existing Criminal Code provisions, as I will outline below, and it is clear that the existing laws already give law enforcement the tools they need to stop these offenses when and where they occur.
First, the exploitation of children and youth is explicitly covered by Sections 212.2(a) and 212.2(b), which specifically prohibit exploitation, coercion, or the use of violence against those under the age of eighteen. Anyone convicted of exploiting children or youth for the purposes of prostitution is to be imprisoned for anywhere from five to fourteen years (personally, I wouldn’t mind seeing the law strengthened even further, because those who exploit children are truly the scum of the earth). It remains illegal to procure anyone under the age of eighteen into prostitution, and these laws were not affected by the SCC’s decision in any way, shape or form.
Second, the illegal trafficking of persons is already prohibited under Sections 279.01 to 279.03. Penalties for this offence range up to 14 years in many cases, or life imprisonment if aggravating factors such as violent assault or sexual assault also occur. Receiving material benefit from the work of trafficked persons is punishable by up to ten years in prison, and withholding or destroying a trafficked person’s documents is punishable by up to five years in prison. In cases where people are trafficked or coerced for the purposes of sexual exploitation (which happens much less frequently than most people believe) the existing laws are more than adequate; police already have the means to do their job effectively, and stop these offenses when they do occur.
Finally, the third aspect of sex work that the public considers distasteful is loud and disruptive street solicitation, or the prospect of large commercial brothels. It is debatable whether the mere presence of a sex worker or a brothel in a neighborhood is disruptive (I and many others hold that it is not) but in those cases where disruption and undue noise do occur, the laws prohibiting public disturbances can be used instead, as per Section 175.(1). Additionally, municipalities already engage in zoning and space restrictions on other types of businesses, so it’s unlikely that a 10-storey brothel will ever be erected next to a schoolyard; there’s no need to use the Criminal Code to settle what is essentially an issue of municipal regulation. There is considerable debate regarding how cities should regulate public space, but again, the claim that new laws restricting sex work must be added to the Criminal Code to settle issues of zoning and licensing is certainly excessive. It’s the legal equivalent of using a 100-decible sound system to drown out the annoying buzz of a housefly.
There’s a logical fallacy known as cum hoc ergo propter hoc, which is latin for “with this, therefore because of this.” It’s commonly assumed that these ills of society – exploitation of children and youth, unwilling trafficking victims, and loud public displays of solicitation – are directly and causally related to prostitution. They are not. They are often associated with prostitution because they are the most visible, most abhorrent, and most nauseating forms of human behaviour. But it would be a mistake to claim that all prostitution is inherently harmful based on these cases – these are very much the exception, and not at all the rule. Laws already exist to prohibit these behaviours, and to allow law enforcement to do their job. Due to decreased enforcement of laws concerning indoor sex work, Prostitution-related charges have dropped by 90% in Toronto from 2006 to 2011 (the same period that the constitutional challenge was underway) but we have not seen the increase in trafficking or exploitation that many have falsely claimed would result from decriminalization. Creating laws that are overly broad and ineffective will just push sex work back into the shadows, and will continue to make it less safe for all those involved.
Sex work can be safe, clean, and beneficial to those of us who choose it as a career. It can be conducted ethically, honestly, and freely, with the full consent of all participants. It can be done right, in the privacy of our own homes, without exploitation; we just need to ensure that governments do not restrict our right to choose what we do with our own bodies.
We have worked so hard to convince the court that the laws were overly broad and detrimental to our safety, and we have worked just as hard to assure the public that we are not to be feared or loathed. We have come too far to let certain political interests undo the gains we’ve made in the past ten years. We ask the Canadian public to support us and stand by us, and not allow weak-willed, ideologically-driven politicians to destroy what we’ve worked so hard to repair.