Earlier this week the BC Supreme Court ruled that former sex worker Sheryl Kiselbach and the Downtown Eastside Sex Workers United Against Violence can challenge Canadian prostitution laws. This comes on the heels of an Ontario Superior Court decision in early October to strike down laws relating to prostitution and the federal government announced their plan to appeal.
The announcement threw open the debate about if and how we should regulate sex work in Canada. Like the general public, women’s and feminist organizations are divided. The Sex Professionals Association of Canada hailed the Ontario decision as a step towards recognition of sex work as a legitimate profession and Vancouver’s WISH Drop-In Centre tweeted: “it is a new day for sex workers.” On the other hand, the Canadian Association of Sexual Assault Centres (CASAC) put out a release expressing their outrage at the Ontario court for legitimating pimping, organized crime, and human trafficking.
In looking at the Ontario case we have to give some weight to the constraints Justice Himel was under. Himel had one decision: are the laws justified to protect the public interest or are they violating sex workers’ right to security of person? She didn’t have the ability to make a comprehensive policy regime for sex workers. That responsibility primarily belongs to the federal government, and it’s a responsibility they’ve been shirking for years. In 2006 a parliamentary committee reported that the status quo was untenable and legally questionable given that it criminalizes aspects of an otherwise decriminalized practice. However, no action was taken by the government.
So Justice Himel made the right choice given her options. She believed the evidence showed the three laws, particularly the law prohibiting communicating in a public place for the purposes of prostitution, made sex work a lot more dangerous than it has to be. It’s legal to sell sex and therefore sex workers have the right to the same security of person as any other Canadians.
But it’s a mistake to think that this ruling deals with all the issues sex workers face or that it will suddenly solve problems of violence, exploitation, and abuse. I share some feminists’ concerns that striking down the laws against operating a bawdy house and living off the avails of prostitution might be more problematic than striking down the communicating law. The former are designed to target pimping, so removing them may have the side-effect of institutionalizing exploitation by pimps and traffickers. But I don't know if it can get worse than it is now.
Even the lawyer for the sex workers who filed the suit, Alan Young, admits the ruling is no panacea and that we will continue to see “many survival sex workers who are motivated by drugs and sometimes exploited by very bad men.”
“Here’s what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law,” Young told the CBC.