Tomorrow, on June 13, 2013, Canada’s Supreme Court will hear a controversial case regarding the constitutionality of three criminal law provisions restricting sex work in Canada. Although the proceedings are currently under seal, they will be broadcast live and archived on the Court website, here. The hearing is scheduled for 9:00 a.m. EST.
Attorney General of Canada, et al. v. Terri Jean Bedford, et al. will resolve a six-year court battle over this controversy, which began when three sex workers in Ontario challenged the constitutionality of three Criminal Code provisions in 2007. The provisions at issue in the case prohibit brothels (“bawdy house” provision), “living off the avails” of prostitution, and communicating for the purpose of prostitution in public. The applicants argue that these laws violate sex workers’ constitutional rights to security of person by forcing them to evade police notice and thus to engage in their (lawful) occupation in more hazardous environments.
Ontario Superior Court’s Justice Susan Himel agreed with the plaintiffs, holding that all three provisions are unconstitutional. (Her full opinion may be found here). On March 26, 2012, the Court of Appeal for Ontario affirmed Justice Himel’s ruling with respect to the bawdy house provision of the Criminal Code, holding that it violates the constitutional rights of Canadian sex workers by forcing them to work outside, thus exposing them to greater risk. However, the Court of Appeal reversed Justice Himel with respect to the communications provision, essentially outlawing street prostitution. The Court also upheld the constitutionality of the “avails” provision but rewrote it to make clear that it applies only “in circumstances of exploitation,” and thus permits sex workers to take safety precautions, such as working in groups or hiring bodyguards. (The full five-judge panel’s decision may be found here). Both the government and the original plaintiffs appealed.
A number of advocacy organizations have intervened on both sides of the case, highlighting the ongoing public controversy regarding sex work and surrounding concerns about exploitation, human trafficking, as well as personal agency, gender inequality, and social morality. (Read more about the ongoing rift within the sex worker advocacy community here). Thursday’s hearing will be an interesting next chapter of a debate that will shape the lives and safety of Canada’s sex workers and may well inform similar discussions in other countries struggling with similar regulatory challenges.
It is worth noting that all three provisions implicated in the case remain in effect pending the Supreme Court’s decision, a legal limbo that sex worker safety advocates argue endangers some of the most vulnerable individuals in Canadian society.