Passionate debate: protesters unfurled their signs when Kim Pate, of the Canadian Association of Elizabeth Fry Societies, spoke about the dangers of decriminalizing the sex trade.
By Lucianna Ciccocioppo
More than 100 students, academics, sex work activists, media and citizens turned out to hear the panel discussion “After Bedford v. Canada: What next for regulating sex work in Canada?” on Jan. 24, 2014 in a packed lecture hall at University College, about a month after the Supreme Court of Canada unanimously struck down several prostitution laws.
Shouts of “Hookers want in!” through the doorway punctuated parts of the talk, as another 50-60 were unable to enter the hall due to capacity limits.
Listen to the audio file of the panel. Read a transcript of the panel discussion.
(Follow the debate on Twitter: #AfterBedford)
The passionately charged discussion—with most panelists for decriminalization, and a sign-laden silent protest against speaker Kim Pate who argued against—explored the legal landscape in the aftermath of the Dec. 20, 2013 decision, which struck down laws banning street soliciting, living on the avails of prostitution and keeping a brothel.
Three Ontario sex workers—Terri Jean Bedford, Amy Lebovitch and Valerie Scott—launched the challenge in 2007, arguing these provisions in the Criminal Code violated sex workers’ constitutional right to security of the person because the laws forced them to work in secrecy.
Panelists spoke of the street realities of the sex work trade and their disconnect with legal doctrines that try to address the issues. Speakers were particularly concerned with the one-year time frame the federal government was given to develop new legislation on prostitution.
“We need to move forward,” said Katrina Pacey, litigation director of Vancouver’s Pivot Legal Society. “The most important thing is that we need to listen to sex workers. They need to have a leadership role in all future law policy development.”
Pacey said she met and spoke with sex workers in Vancouver’s Downtown East Side, and “everything I thought I knew, studied in text books or had seen in society about sex work melted away.” She argued now was the time to look at the “harms and the failures and the disaster of criminalization, and to start thinking about a new approach.”
Criminally charging clients means sex workers have to work longer, harder and in more dangerous conditions, Pacey said, and this increases their chances of experiencing violence.
“They’re displaced to other dangerous areas of the city. They worry about being caught by police so they move further down the road. Clients wave them towards a dark alley, so sex workers can’t make quick assessments about safety, if the client is a ‘bad date’, has a gun or is drunk.”
“I'd like to see the New Zealand model kind of become part of our discourse the way the Nordic model is right now…You say Nordic, I say New Zealand and we’ll move forward from there.”
Said Pacey: “They’re telling me they want access to the legislation that protects them, but criminalization of the sex trade stands in the way of that access.”
While the Faculty of Law’s Prof. Brenda Cossman called the challenge and the SCC decision “smart and courageous,” she also had some criticism of the decision. Cossman, who heads the Bonham Centre for Sexual Diversity Studies, said: “It casts sex work into the language of harm. It reflects the legal arguments that were made. It reflects the lower court decisions, where the focus was on how the law harms a vulnerable at-risk group...but there's nothing in the decision about sexual morality. There's nothing in this decision about sexual autonomy. There's nothing in the decision about decriminalizing prostitution.”
Furthermore, it was an open invitation for Parliament to write new criminal laws, said Cossman, “because that’s what the government has jurisdiction over—not zoning, nor municipal bylaws … and that’s what the Minister of Justice is planning on doing.”
Cossman argued Justice Minister MacKay also uses the word ‘harms’ in his advocacy of the Nordic model, where the purchase of sexual services, not the sale, is criminalized. While the Nordic model has many advocates—“feminists and evangelicals are in cahoots once again”—she said “pretty much everything is wrong with the Nordic model, as we heard from the Vancouver sex workers.”
Language was a key point during Christa Big Canoe’s talk. The legal advocacy director at Aboriginal Legal Services of Toronto applauded the SCC decision but noted it did not include words such as Aboriginal, Aboriginal women or colonialism. “But was it a win for Aboriginal women? Absolutely.”
Big Canoe said these were exciting times for law students. “We have an unanimous decision that talks about fundamental justice. No matter what policy decisions arise, we cannot have this discussion without talking about the safety of women.” She pointed out the government’s tight timeline to enact new legislation would affect those most at risk. “Without proper consultation, or without consultation from voices that matter the most, or from the most vulnerable, we’ll not have strong laws.”
Jamie Cameron, Osgoode Hall Law School professor, echoed these concerns. “It's great to have an important victory in this case, and I do support the outcome on the merits, but I just want to impress upon this audience that the grounding of the decision matters too…It matters on the ground to the rest of you as well because this is the framework under which the Court operates. If it's arbitrary, and shallow, and thin, and ad hoc in nature, you win one case but you don't know what's going to happen the next time around.”
Representing the Canadian Association of Elizabeth Fry Societies, executive director Kim Pate argued her society reversed its position on decriminalization in 2008 because of the impact on women sex workers. Her talk drew reaction from some of the audience, including about half a dozen people who held up signs that said: #notyourjustice project; Listen to Sex Workers; and Stand with Sex Workers.
“The law was only being applied to women. The reason we took the position [of criminalization] is there was—and we would argue there continues to be—an asymmetrical application of the law against women. In fact, we see very little protection of women, very little in terms of safety and security of women in much of what is being proposed across the board increasingly when we talk about decriminalization.”
Cossman spoke of a longer term strategy and turning to other jurisdictions as examples, such as New Zealand. Cheryl Auger, volunteer and board member of Maggie’s Toronto: The Sex Worker Action Project, an organization run by and for sex workers, explained the New Zealand model, where sex work was decriminalized and municipal licensing is used as a form of regulation, is one to watch.
“But it's only used in commercial brothels of four or more employees,” explained Auger. Also sex workers can form collectives or cooperatives to work together without state regulation or intervention. “That said, New Zealand is no panacea,” said Auger. “Their municipal laws have been criticized because migrant workers cannot legally work in commercial brothels and additionally, some municipalities impose unreasonable restrictions and conditions in licensing and zoning.” With byzantine zoning rules, it was impossible to find locations for brothels, explained Auger.
Still, it’s a model that’s not been explored enough, said Prof. Cossman, something she’d like to see changed. “I'd like to see the New Zealand model kind of become part of our discourse the way the Nordic model is right now…You say Nordic, I say New Zealand and we’ll move forward from there.”
CBC Radio’s “The Sunday Edition” recorded the panel live. Watch this space for the date and time of its broadcast.
The After Bedford panel was generously supported by the Scotiabank University of Toronto Faculty of Law Lecture and Conference Fund and the Institute for Feminist Legal Studies, Osgoode Hall Law School, York University, and co-sponsored by the Mark S. Bonham Centre for Sexual Diversity Studies and the Centre for Criminology and Sociolegal Studies, University of Toronto.
