- Lewis Waring
Sex Work and the Law - Dane Kingdon
Prostitution, sex work, the trade, and the world’s oldest profession are just some of the many names for the selling of sex. Canada has a very turbulent history with sex work and the law, seein sex work going from legal to illegal and finally to decriminalized throughout Canada’s history. For what some have called the world’s oldest profession you would think our legal system would have a solid understanding of how to treat sex work. It would be reasonable for one to think that after all this time there must be some consistent purpose to the laws, a goal in mind, so to speak. Unfortunately, even though the Canadian government has had its entire history to come to a consistent answer to how to supervise sex work, there still is no consensus. The state of the law now is, to be frank, a tangled mess of contradictions. I will argue that Canada needs to decide that sex work is a trade just like any other and commit to regulating it and keeping the workers safe. The state of the law now is a mix between legal and illegal which in the end is expensive, solves none of the problems associated with sex work, and even exacerbates many of them.
To start off it is important to briefly summarize what the state of the law is now. At the moment in Canada, it is legal to sell sex. Many are surprised by this fact because of the stigma surrounding the act. Sex work laws in Canada are strange because while it is legal to sell sex it is illegal to buy sex. It is also illegal to help someone sell sex. Which basically means that all the acts surrounding the act of selling sex are illegal except the selling of it. This policy, while strange, does serve a purpose. The goal of the government is to not punish the person who sells the sex but to charge the “John”, the person who is actively buying it. The Canadian government has made the decision that the sellers of sex are victims, and the buyers are criminals. To protect the victims, they only criminalize the buyers. This on the surface makes sense because even the most ardent advocate for sex workers will admit the dangers of the profession. The problem with this line of reasoning is that, if sex workers are truly someone that the government wishes to protect, then they have been very inconsistent in doing so.
The case of Canada (Attorney General) v Bedford (“Bedford”) shows why criminalizing all aspects of sex work other then the work itself is so problematic. Bedford revolved around laws that criminalized aspects of prostitution such as:
living off the avails of prostitution; or
communicating in public for the purpose of prostitution.
The effect of these laws was to make it impossible to practice prostitution without breaking a law even though the actual sex was legal for the sex worker. Bedford clearly shows how damaging laws like these can be. Sex work has dangers; being in public or in a group house can often help the workers stay safe. If a customer gets physical, the workers have the ability to call for help. The laws in Bedford made it illegal for sex workers to protect themselves. The litigants argued the dangers these laws created caused their right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”) to be infringed. In a landmark decision, the Court agreed in a 9-0 decision that the laws were in fact unconstitutional.
The question is what the government should do after Bedford. Will the state finally start passing laws that actually protect sex workers or will they stand firm and keep insisting that prostitution is such a moral problem that it needs to be criminalized? The federal government needs to have an honest and logical discussion with the public and ask some controversial questions such as “why is prostitution so heavily criminalized?”. Sex is legal and rendering one’s service for a wage is also legal. Why then is prostitution illegal? The simple answer is that our government believes paying for sex is the problem. However, this argument rings hollow when one brings up the pornography industry. In pornography, there are two consenting adults being filmed and paid to have sex by a third party which is then sold to more people so they can sexually gratify themselves. Clearly our government has no problem with people being paid for sex. The government thus instead falls back on the inherent dangers of a stranger paying a prostitute for sex as the reason for its criminalization. This argument, while better, is still inconsistent with the government’s laws. As shown in Bedford, the laws that are prevalent in Canada are in fact making sex work more dangerous, not less. The federal government seems to be straddling two different beliefs. The first is that sex work is so immoral and dangerous that there would be no way to legalize it in a safe way. The other is that a sex worker is still a person and has a right to be safe and not punished for the work they do. These two goals are diametrically apposed because criminalization causes sex work to be more dangerous, while decriminalization will most likely cause there to be more sex work.
Before any long journey, it is important to know the destination. A destination allows one to pick the most efficient and safe route. A destination is very similar to a purpose and, at the moment, our government seems to be lacking a purpose for our criminalization of sex work. Instead of taking the most direct route, our government is all over the map, simply because there is no way to plan a trip or a law without a destination in mind. Until the federal government decides on a consistent purpose for our laws regarding sex work, our metaphorical journey will never end.