[SWAF-Potluck] What if Ottawa now criminalizes prostitution?

[Andy Sorfleet]

http://www.theglobeandmail.com/
GLOBE AND MAIL
Friday, December 20, 2013

Brenda Cossman



What if Ottawa now criminalizes prostitution?

The Supreme Court of Canada was unanimous: our prostitution laws do more
harm than good. The laws take a lawful activity and make it more dangerous.
It is an important victory for sex workers and their allies who support
decriminalization. But, the debate is anything but over.

Three criminal laws were at issue: the laws preventing bawdy houses or
brothels; living on the avails of prostitution; and communicating in public
for the purposes of prostitution. Each law, according to the Court,
increases the risks faced by sex workers.

The bawdy house law prevents sex workers from working in one place, rather
than on the street or other risky locations. "A law that prevents
street-prostitutes from resorting to a safe haven such as Grandma's House
while a suspected serial killer prowls the streets, is a law that has lost
sight of its purpose."

The law preventing living on the avails prevents sex workers from hiring
body guards, drivers, even receptionists, who could increase their safety.

And the communication law increases the risk faced by sex workers, by
forcing them into more isolated areas, preventing them from taking the time
to screen clients and setting terms such as condom use or safe houses.

The Court unanimously struck down these three laws as unconstitutional, but
suspended the remedy for a year.

There is much to applaud in this ruling. But, there is also much in the
ruling that sets the stage for a less than progressive response. The
Supreme Court ruling is, after all, all about reducing the risk and danger
of prostitution. There is nothing in the ruling about how these laws harken
back to a nineteenth century sexual morality of protecting the public from
bad sex and fallen women. There is nothing in the ruling about demoralizing
and decriminalizing prostitution.

Indeed, the Court made it clear that its ruling "does not mean that
Parliament is precluded from imposing limits on where and how prostitution
may be conducted." There is, instead, an open invitation to Parliament to
write new criminal laws. According to the Court, "The regulation of
prostitution is a complex and delicate matter. It will be for Parliament,
should it choose to do so, to devise a new approach, reflecting different
elements of the existing regime."

Justice Minister Peter MacKay has already stated that his government will
try to do precisely that. "We are reviewing the decision and are exploring
all possible options to ensure the criminal law continues to address the
significant harms that flow from prostitution to communities, those engaged
in prostitution and vulnerable persons."

The decriminalization of prostitution should not mean non-regulation. After
all, we are Canadian -- we regulate everything. Rather, sex work after
decriminalization would require extensive discussions around zoning,
licensing, occupational health and safety, amongst other regulatory
options. And as other jurisdictions that have decriminalized prostitution
have shown, some options are better than others from the point of view of
the rights of sex workers.

This is the discussion we should be having. But, the next year is likely to
be taken up not with the question of whether to criminalize prostitution,
but rather how to criminalize prostitution.

The Supreme Court of Canada vindicated the rights of sex workers today.
But, the struggle for decriminalization of prostitution is anything but
over.

Brenda Cossman is a professor of law at the University of Toronto.
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