Canada rang in the New Year quite loudly this year. In the closing days of 2013, the Canadian Supreme Court held in a 9-0 decision that the nation’s anti-prostitution laws were unconstitutional as they interfered with the life and liberty of sex workers.[1] The ruling provided the Canadian Parliament with one year to draft legislation that will govern the work conditions for adult prostitution.
Although prostitution was already legal in Canada prior to this recent decision, the issue in the case addressed three provisions of the Canadian Criminal Code that illegalized certain activities connected to the act of prostitution. Such illegal activities included communicating in public about prostitution, running and/or living in a brothel, or earning a living by working for a prostitute.
In striking down all three prohibitions, Canadian Supreme Court Chief Justice Beverley McLachlin wrote in the decision,
[t]he harms to prostitutes . . . such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption [that is the object of the law]. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.
The Canadian Supreme Court noted the although sex workers who engage in prostitution as a profession by choice may still face dangers a result of their “pimps” or “johns,” this fact does not diminish the responsibility of the state government to provide safer working conditions. The Canadian Supreme Court stated that to do otherwise would be to place prostitutes in a position that is more “vulnerable to that violence.” For example, in removing the ban on public communications, prostitutes will now have the opportunity to screen their clients and thereby mitigate chances of further exploitation. Similarly, the legalization of regulated brothels will enable prostitutes to conduct their profession in a safe and sheltered environment. Ultimately, the Canadian Supreme Court noted that many of the bans were in place to prevent pimps from exploiting sex workers. However, the Court found that the laws’ broad prohibitions extended beyond that purpose by unconstitutionally punishing everyone involved in the profession.
For future updates on how the Canadian Parliament will devise its rules and regulations to protect this unique class of employees, stay tuned to this blog.
Special thanks to Melissa Cefalu, a law student at Maurice A. Deane School of Law, and Scott Brenner, a law clerk at Cullen and Dykman, for their assistance with this post.
[1] See Canada v. Bedford, [2013] S.C.C. 72 (Can.). The Canadian Supreme Court decision may be reviewed at the following link: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do.