Bedford v. Canada: The Labour Rights of Sex workers

2013 Alyssa Clutterbuck 100x150The Canadian HIV/AIDS Legal Network is an intervener in Bedford v. Canada.  The case is a constitutional challenge to Canada’s prostitution laws, specifically three laws in the Criminal Code: keeping a bawdy-house, living on the avails of prostitution, and communicating in public.  Oral arguments in the case took place last Thursday (June 13) at the Supreme Court.  Three plaintiffs, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, first filed the challenge in March 2007.  Last year, the Ontario Court of Appeal held that provisions in the Criminal Code have serious negative impacts on the constitutional rights of sex workers, namely a threat to their health and safety.

It is legal in Canada for consenting adults to legally exchange sex for money; however, most activities related to this exchange are criminalized.  For instance, the Criminal Code makes it illegal for sex workers, their clients, and third parties to communicate about the exchange of sex for money in a public place, or to “live on the avails” of prostitution.  Sex workers are prohibited from taking basic measures to screen their clients, work indoors in a safe, familiar place, or hire security personnel to protect them.

Catholic, Christian, and the anti-feminist group REAL Women formed a coalition opposing decriminalizing the impugned provisions and were granted intervener status to make arguments before the court.  The Evangelical Fellowship was also granted intervener status on its own to argue before the SCC.

On the other hand, the Feminist Coalition and 2 sex-worker led coalitions were denied intervener status by Justice Richard Wagner back in May: The POWER-Maggie’s-Stella Coalition and the International Sex Worker Coalition made up of sex worker associations from Australia, Sweden and New Zealand.  This was a huge blow to ensuring that the voices of sex workers are at the forefront of case proceedings.  As Catherine Healy, coordinator of the New Zealand Prostitutes’ Collective, stated, “Sex workers are the real experts on the sex industry and know first-hand the impact of the criminal law on our safety and human rights. It is extremely concerning to us that the Supreme Court of Canada proposes to examine this case without the input of a broad cross-section of those most affected.”

Also denied status was the Feminist Coalition, representing 23 women’s shelters, rape crisis centres, clinics and women’s rights organizations across Canada as well as internationally.  These groups offer frontline services to sex workers and also work to advance the rights of sex workers.  In addition, the Canadian Civil Liberties Association was denied intervener status.

A group calling itself the Women’s Coalition for the Abolishment of Prostitution (includes the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada, the Canadian Association of Sexual Assault Centres, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel, the Vancouver Rape Relief & Women’s Shelter, and L’Action Ontarienne contre la Violence faite aux Femmes) was granted intervener status, and advocates an “asymmetrical” approach to criminalization.  This approach, known as the “Swedish model”, is underpinned by the philosophical imperative that all sex work is inherently a manifestation of violence against women and, therefore, must be eradicated.  To reach the end of sex work, therefore, laws must continue to criminalize the purchase of sex and those who “promote” sex work, including sex workers themselves.

In 1999, Sweden passed the law Prohibiting the Purchase of Sexual Services (Sex Purchase Act), which punishes those who purchase sex with a fine or imprisonment for up to one year.  The law’s stated objective is to “end demand” for prostitution because sex workers are deemed to be “victims” and sex work is considered to cause serious harm to individuals and to society as a whole.

Evidence from the Swedish sex work industry since the law’s passage, however, reveals that the law perpetuates stigma, discrimination and violence against sex workers, concerns at the core of the constitutional challenge in Bedford.  Street sex workers have reported increased experiences of violence.  Regular clients have avoided them for fear of police harassment and arrest and are instead using the Internet and indoor venues.  This has led to greater competition for clients, driven prices for sex down, and forced sex workers to accept clients they would have otherwise refused, including those who insist on unsafe sex practices.  Sex workers who work indoors continue to be criminalized and are unable to work or live with others, including their partners, since it is illegal to share in any income derived from sex work.

Furthermore, sex workers continue to be denied access to social security benefits that are available to all other workers in legal labour activities.  As in Canada, the Swedish model wrests control from sex workers over their working conditions and institutionalizes an adversarial relationship between sex workers and law enforcement.

The Legal Network’s arguments are informed by principles of the rights to health and work, and embody the perspectives of a range of Canadian and international sex worker activists.  They are also supported by a broad consensus among international health and human rights experts that the criminalization of sex work—and, by extension, sex workers—threatens the health and human rights of sex workers.

It is clear that the legal framework for sex work in Canada must change.  But it must pivot towards seeing sex workers as just that –workers, engaged in labour, and in need of the rights and protections associated with belonging to the workforce.  Bedford is an important step toward providing sex workers their international and Charter rights to freedom of expression, freedom of association, security of the person, right to work, and the right to enjoy just and favourable conditions of work.

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