Canada: Forging a Smarter Path after Prostitution Ruling

Will Canada become the next country to decriminalize prostitution? That is the question left on the table after a recent decision by the Supreme Court of Canada ruled that current Canadian prostitution laws are unconstitutional.

In the monumental December 20 decision, the Supreme Court struck down the nation’s three most prominent prostitution laws, which forbid:

  • keeping a brothel;
  • living off the avails of prostitution;
  • solicitation for the purpose of prostitution.

The unanimous decision by the court, in its 9-0 ruling, found that those laws, as currently applied, violate the guarantee to life, liberty, and security of the person enshrined in the Canadian Charter of Rights and Freedoms. As part of the ruling, parliament has one calendar year to revise the current laws. If they fail to do so, all pre-existing laws with regard to prostitution in Canada will be void.

Terri-Jean Bedford, one of three plaintiffs in the case, flashes a victory sign as she speaks with the media after learning Canada's highest court struck down the country's prostitution laws at the Supreme Court of Canada. Source: National Post
Terri-Jean Bedford, one of three plaintiffs in the case, flashes a victory sign after learning Canada’s highest court had struck down the country’s prostitution laws at the Supreme Court of Canada. Source: National Post.

With the federal government’s hand forced, the elephant in the room is what Canada’s Conservative majority government will do.

The simple answer may be that they don’t have to actually do very much. While Prime Minister Stephen Harper and other high-ranking members of his government have quietly voiced displeasure with the decision, their course of action need not necessitate installing revolutionary reforms.

At present, prostitution in Canada is not illegal; nor is the sale or purchase of sexual services. Only the actions noted in the court’s decision are currently illegal, which is why these rules infringed on a prostitutes’ rights to safely carry-out prostitution legally.

With that in mind, Canada is likely looking internationally for potential ways to resolve the matter, of which there are plenty.

Europe — a region that often gets labeled as progressive in these areas — has as much legal diversity on this as there is in current Canadian debates. In the same week as Canada’s Supreme Court decision, the parliament of France criminalized paying for sex. Similarly, Sweden fully criminalized prostitution in 1999. On the liberal side, Germany has treated prostitution as a legal industry since 2002, as has the Netherlands since the year 2000, when it lifted its brothel ban.

People demonstrate against prostitution outside the French parliament in Paris on Dec. 4. On the same day, France’s lower house of parliament voted for tougher prostitution laws, making it a crime to pay for sex. Source: CBC
People demonstrate against prostitution at the French parliament in Paris on December 4. That day, France’s lower house of parliament voted for tougher prostitution laws, making it a crime to pay for sex. Source: CBC.

The existing variants among even geographic neighbors affirms the widely held view that the legality of prostitution is divisive — and it provokes heated debate with even slight changes to legislation. Given this, the easy way out for the Canadian government would be to criminalize prostitution across the board. This would appeal to the still majority of conservative Canadians, and it would appease the court’s demands.

But the easy way out in this case would be the wrong decision; it would mean missing the great opportunity Canada has to successfully overhaul a system that has been inappropriately applied for years.

The most likely outcome — a law to criminalize the purchase and or sale of sex — might satisfy the requirements established by the Supreme Court, but not those at the heart of the issue: recognizing the reality that prostitution is a job and increasing the safety of individuals within an industry that will exist independent of its legal standing.

It’s an admittedly slippery, and often dangerously arbitrary, slope when discussing regulating actions that many find immoral. Everyone is entitled to an opinion on prostitution, but opinions shouldn’t necessarily be transformed into legislation. Rather, the point of consideration should be whether an individual who chooses to be in the sex industry has his or her freedoms limited and safety jeopardized.

Which brings us back to the European precedents. This biggest concern with full legalization in Germany has been that it has provided easier access for traffickers and prostitutes being forced into the trade. Both trafficking and pimping remain illegal, but they have grown anyway, due to the difficulty in prosecuting those involved, according to Chantal Louis, editor of the German feminist magazine, Emma.

Similar issues also exist in Sweden, though, where it is criminalized. Pye Jokobbsson, a former prostitute in Sweden for 24 years, claims criminalization drives women deeper into the shadows, making the already risky line of work even more dangerous.

“Criminalizing sex work and things around sex work is not the solution. It makes us more marginalized and vulnerable,” she said.

With both these examples having flaws, Canada finds itself in the unique position of being able to come up with its own way of dealing with prostitution. While avoiding the two apparent extremes, Canada should develop a system where those who want to be in the industry can do so in a safer manner, while also continuing to prosecute those involved in its still illegal elements — human trafficking, for example.

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