The Canadian Decision on Prostitution

The recent decision of the Canadian Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72 (20131220) supports many of the arguments the abolitionists have made against prostitution.  The court agreed that prostitution is non-consensual, dangerous, exploitative and represents the subordination of women. However, since prostitution is legal in Canada, they focused only on safety issues and fashioned a remedy to offer what protection the state can under those circumstances.

Three provisions of the Criminal Code were attacked:  210, making it an offence to keep or be in a bawdy house; 212(1)(j) prohibiting living on the avails of prostitution, and 213(1)(c) prohibiting communicating in public for the purposes of prostitution. 

The court examined the case on three issues: arbitrariness (where there is no connection between the intent and the effect of the law), over breadth (where the law goes too far and interferes with other conduct), and gross disproportionality (where the effect is much stronger than necessary to achieve the objective).  The principles compare the rights infringed by the law with the objective of the law, not with the law’s effectiveness or coverage. 

The question for the court was whether the three laws increase the risks women face in prostitution.  If so, the laws should be eliminated because it is the job of the state to decrease violence toward women (para 59-60). The court notes that the lead claimant, Bedford, had a difficult childhood and was subject to various types of abuse, and that all three claimants experienced violence in prostitution. The goal of the decision was to increase the safety of women in prostitution not end the violence against women. 

The court found that the provisions prohibiting a bawdy house make prostitution more dangerous because it prohibits indoor prostitution, thereby forcing women to do out-call or street prostitution, in which the court found that the women face an alarming amount of violence (para 361) including a high homicide rate. (para 135) While the court admits that all forms of prostitution are dangerous, they perceive that indoor may be safer than out-call or street prostitution, and therefore should not be prohibited.  (para 61, 65)  The court also acknowledged that it is the conduct of pimps and johns that is the immediate source of harm to prostituted women (used in the generic sense).  (para 89)  But that does not absolve the government from doing what it can, in a country where prostitution is already legal, to protect the victims.  

The court had found previously (R. v. Downey, [1992] 2 S.C.R. 10) that prostitution was a parasitic relationship (para 66-67), and that pimps should be targeted for their parasitic, exploitative conduct (para 137), which justified the prohibition of living on the avails of prostitution.  But the provision was so broad it prevented legitimate relationships e.g. drivers, bodyguards, perhaps even roommates and adult children from living with or being paid by a woman in prostitution.  Therefore, because it would prevent a woman  from hiring a legitimate bodyguard or provide other safety mechanisms, it could harm her security. 

The purpose of the communicating provision ((213(1)(g)) was to eliminate social nuisance accompanying the public display of the sale of sex (para 146).  While the court admitted that prostitution includes exposing young people to violence, drugs, crime, victimization, and economic disadvantage and that, “…   exploitation, degradation, and subordination of women that are part of the contemporary reality of prostitution,” the judge said the reason to ban communication was not to stop the exploitation, degradation, and subordination of women, only to remove it from public view.  Thus, while the court agreed with the abolitionists that prostitution inherently does exploit, degrade, and subordinate women, they don’t seek to stop that, only to hide it.

Since the prohibition on communicating in public interferes with the woman screening potential johns for safety issues, it was likewise struck down. (para 68, 71-2)

However, the court agreed that few, if any, people freely choose prostitution, admitting that many prostituted persons have no meaningful choice.  (para 86) As the court pointed out, finances, drug addictions, mental illness, or compulsion from pimps marginalizes the population.   

The case was brought under s. 1 and s. 7 of the Canadian Charter but the court specifically decided it only on s. 7. Section 7 is solely concerned with whether the law’s impact on security of the person can be justified.  Section 1 is concerned with whether the law’s impact is justified when considering the public interest.  The public interest was not considered in this case as the court did not look at whether the law itself had a positive or negative impact on society (para 121) or whether the law itself furthered the public interest.  (para 125)

The court has admitted that prostitution is inherently dangerous, that pimps and johns are inherently harmful, and that the state has an obligation to protect the victims. However, in a legalized system such as Canada’s, the court believed it could only ameliorate the harm rather than eliminate it.  Abolitionists believe the harm must be eliminated, not only because of the physical, psychological, economic, and social harm but also because of the violation of fundamental human rights. 

We all agree that women should not be criminals nor treated as criminals. That is the basis of the Nordic model. The Canadian case agrees that pimps and johns are harmful and that prostituted women are in a dangerous situation. But rather than stopping the harm, the decision says, we’ll try to give you, the victim, tools to use on an individual basis to improve your safety.

It’s like saying that because we know that one-third of women suffer physical violence and another one-third verbal and psychological violence in marriage, training in martial arts and psychological manipulation should be required for women before any marriage license is granted so the victim has the tools to control the violence. 

On the other hand, the Nordic model makes the same statement that we know johns and pimps are harmful, and the women are in a dangerous situation, so we’ll stop the harms on a societal basis, not leave the job up to the victim in her individual capacity.  The Nordic model is in conformance with international law that requires states to protect citizens not only from state-sponsored violence but from private violence as well. 

The court also did not leave prostitution unregulated.  Because prostitution is a matter of great public concern, the court felt it could not simply overturn the laws immediately leaving no regulation, and therefore, they suspended the ruling for a year to allow Parliament to impose limits on where and how prostitution may be conducted.  (para 165, 167, 169)

In the Canadian decision, the court admitted that violence toward prostitutes exists and that the degradation and subordination of women is what prostitution represents.  In spite of that acknowledgement, the court has tried to fashion a kinder, gentler type of prostitution.  Sweden, on the other hand, also acknowledged the subordination and degradation of women exemplified by prostitution and has decided to tackle the underlying problem because, if a country truly believes in equality and human rights of all citizens, it is the only way.

Also from this issue

Lead Essay

  • Treating Sex Work as Work by Maggie McNeill

    Sex work is ubiquitous. Where a substantial demand exists, some people will inevitably try to meet that demand for a price. Retired call girl and madam Maggie McNeill reviews the various legal regimes that have been set up to regulate and/or prohibit sex work. She concludes that many approaches, particularly the most restrictive ones, increase the likelihood of harm to all participants. They tend to infantalize women and invest law enforcement with arbitrary and dangerous powers. She argues that the best approach is a regime of simple legalization, without licensing or heavy restrictions.

Response Essays

  • Prostitution as a Legal Institution by Ronald Weitzer

    Prof. Ronald Weitzer argues that prostitution should be treated as a legal commercial transaction. He finds that much of the conventional wisdom on the sex trade is the result of generalizing from experience under legal regimes where it is criminalized. He argues that in a legally tolerant regime, many of the problems we observe today would vanish. He argues for a set of “best practices” that would entail some government regulation of sex work, including subjecting business owners to background checks and licensing, zoning regulations, and restrictions on advertising. These measures would make decriminalization politically palatable and protect against a possible backlash. He also finds, contrary to McNeill’s claim, that no country has fully deregulated sex work.

  • Prostitution Cannot Be Squared with Human Rights or the Equality of Women by Dianne Post

    Dianne Post argues that prostitution is a form of exploitation, and that the only proper response is to abolish it. Prostitution, she argues, only exists because of material inequalities. Worse, it tends strongly to produce further inequalities – material, social, and political in nature. Prostitution traps women in economic dependency on men, and it encourages men to view women merely as commodities. Following this strong normative case against prostitution, Post looks at the empirical evidence, where she concludes that experiments with legalization have all been failures. She praises the “Nordic Model” approach to sex work, in which in which sex workers’ clients are prosecuted, rather than the women involved in prostitution.

  • Prostitution is Exploitation by Steven Wagner

    Steven Wagner argues that the large majority of prostitutes are not workers at all, because they are not acting voluntarily: they are enslaved. The personal experiences of Ms. McNeill notwithstanding, many others have suffered horribly in prostitution, and even left-leaning governments like that of France under the socialists have justifiably outlawed the sex trade. Wagner likewise prefers the Swedish approach, in which prostitutes are not treated as criminals, but those who attempt to buy sex are.

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