Category Archives: Commentary

Marisa Fassi (April 29 at Osgoode): Sex Workers and the Claim for Grassroots Legislation in Cordoba-Argentina

PTTP Presents:   Legal Is Not Always Right: Sex Workers and the Claim for Grassroots Legislation in Cordoba-Argentina

Tuesday, April 29th, 2014 at 2:00 pm, Room 4034

with

Marisa N. Fassi

Should sex work be regulated? Abolitionist and prohibitionist perspectives relegate sex work to secrecy thereby re-enforcing sex workers’ vulnerabilities. Reglamentarist and labour legality models propose a state law for the activity; however, the way those norms are constructed show us that legality does not necessarily mean more protection for sex workers.

In this session we will discuss the experience of organized women sex workers in Córdoba-Argentina. In this particular experience, comparative law was used as a starting point to facilitate legal debates among sex workers in their struggle to design and promote grassroots legislation as an alternative contextualized approach that can prevent violence, vulnerability and exploitation.

Marisa N. Fassi is a third year PhD Candidate for the International Programme in Law and Society ‘Renato Treves’ of the Unviersità Degli Studi di Milano, Italy. Her research project aims at exploring socio-legal dynamics of power and resistance of groups who are on the margins of law, it focuses particularly on sex workers and cardboard pickers in the city of Córdoba-Argentina. Marisa has her first degree in Law from the National University of Córdoba-Argentina, and an M.A in the Sociology of Law from the International Institute of Sociology of Law- Oñati, Spain. Her main interests and publications are related to sex work, waste picking, law and resistance in everyday life and socio-legal theory and methods in general.  Marisa will be visiting Osgoode from March 2014 to May 2014.

 

 

 

All are invited to attend. Refreshments will be served.

Prof. Jula Hughes (UNB law): The Closure of the Morgentaler Clinic and the Rule of Law in New Brunswick

This dispatch received gratefully from Dr. Jula Hughes of University of New Brunswick Faculty of Law. Please share widely! 

what

I moved to New Brunswick in 2006 to take up a position as an Assistant Professor at UNB. The first time I had a student sitting in my law school office red-faced with anger and streaming with tears, it was not because of a poor grade or a difficult assignment. It was because that student had been refused a prescription for birth control by a doctor in a walk-in clinic because she was not married and therefore wouldn’t be needing it. The reason she came to speak with me was that I had organized a panel on reproductive rights at the law school. My office had become known as a ‘safe space’ for talking about reproductive health. Such spaces are much needed in a province where considerable portions of the medical establishment seem to be utterly oblivious to the notion that they are in a helping and not in a judging profession. Since then, I have heard from women who were refused paps, women who were refused information about contraception, women who were refused birth control prescriptions, women who were refused referrals for abortions and women who were treated punitively by their doctors after abortions.

It was therefore with a sense of doom that I participated in a press conference this past week, where the Morgentaler Clinic in Fredericton announced that it will be closing by the end of July. The closure will leave the women of New Brunswick and Prince Edward Island without access to clinic-based abortions and with no reliable place for information about reproductive health. There is no hospital on PEI that provides abortions. Two hospitals in New Brunswick provide approximately 400 procedures annually, with waiting periods of three weeks or more. These waiting periods are in addition to the typical wait of two to three weeks for getting to see one’s family doctor should one be so lucky to have one and does not include the time required to find an alternative if one’s doctor turns out to be anti-choice. The Morgentaler Clinic has typically provided about 600 procedures a year. According to the Clinic Manager, about 60 procedures are provided to PEI women annually. Without changes to the law and resources, New Brunswick women will lose 60% of capacity for abortion care, PEI women will lose about 50%. The loss of capacity will chiefly affect the most vulnerable women. 

Women in New Brunswick know that they have a right to access abortions. They know that they have a right to funded abortions and they know that elsewhere in the country, Medicare would cover a clinic-based abortion. So why have we had 20 years of clinic abortions without funding? Why are New Brunswick women second-class Canadian citizens? So glad you asked.

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The story really begins with the decision of the Supreme Court of Canada in R. v. Morgentaler in 1993. Determined to oppose the implementation of the earlier Morgentaler decision of 1988 and the intent of Dr. Henry Morgentaler to bring safe, accessible abortion care to the maritime provinces, the Nova Scotia government approved regulations and later enacted a law prohibiting abortions outside a hospital as well as a regulation denying insurance coverage for abortions performed outside a hospital.  The province of New Brunswick already had very similar legislation on the books. That law had been enacted after the Province lost a law suit brought by Dr. Morgentaler in 1989 when the Province refused to pay for abortions for New Brunswick women performed at the Montreal Morgentaler Clinic. (Morgentaler v. New Brunswick (Attorney General) 38 Admin. L.R. 280, 98 N.B.R. (2d) 45.) Despite the court order, the procedures were never paid. In 1993, the Supreme Court of Canada held that the analogous Nova Scotia law and regulation were in pith and substance criminal law and ultra vires the province. This was because they did not serve medical purposes, but were designed to restrict abortions as an ostensibly socially undesirable practice which should be suppressed or punished.

Dr. Morgentaler applied to the New Brunswick Court of Queen’s Bench for a declaration of invalidity of the New Brunswick version of the law. Applying the Supreme Court decision of the same year, the New Brunswick Court of Queen’s Bench in 1993 struck down the law and a majority of the New Brunswick Court of Appeal upheld the decision in 1995. The majority stated:

The Nova Scotia legislation attempted to mask its true intent, namely, the prohibition of abortions except in certain circumstances, while the New Brunswick legislation openly prohibits the same conduct. That distinction and the fact that the New Brunswick legislation, unlike the Nova Scotia legislation, was enacted before the Supreme Court of Canada struck down the abortion provisions in the Criminal Code of Canada in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 cannot, in our view, change the true nature of the impugned legislation and its dominant purpose, which is the prohibition of conduct that the Province considers to be socially undesirable.

 

This decision dealt with the prohibition, but not with the other component found unconstitutional in the Nova Scotia case, the exclusion of abortion from insured services. In relation to this issue, the Supreme Court in 1993 answered the constitutional question as follows:

Is the Medical Services Designation Regulation, N.S. Reg. 152/89, made on the 20th day of July, 1989, pursuant to s. 8 of the Medical Services Act, R.S.N.S. 1989, c. 281, ultra vires the Lieutenant Governor in Council on the ground the Regulation was made pursuant to legislation in relation to criminal law falling within the exclusive legislative jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867?

Answer:  Yes.

In 1989, the Minister of Health had promulgated a revised schedule to the general regulation under the Medical Services Payment Act. It provided:

SCHEDULE 2

The following are deemed not to be entitled services….

(a.1)    abortion, unless the abortion is performed by a specialist in the field of obstetrics and gynaecology in a hospital facility approved by the jurisdiction in which the hospital facility is located and two medical practitioners certify in writing that the abortion was medically required;

In 1994, the Province amended the Medical Services Payment Act to include section 2.01. It provides:

 Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for (…) entitled services furnished in a private hospital facility in the Province.

The combined effect of the law and amended schedule was that an abortion is not funded by Medicare unless it is performed in a hospital by an OB-GYN after two doctors certify that the abortion is medically necessary.

Like in Nova Scotia, the purpose of the provisions in the Act and regulation was clearly not medical. This is obvious from the fact that it neither protected patients (if clinic abortions were detrimental to patients, why were they permitted, and not merely not paid for) nor the tax payer (in 1993, the Supreme Court accepted that the physician cost was the same, however, in the meantime it has become clear that clinic abortions are much cheaper than hospital abortions. Currently, a hospital abortion in Nova Scotia is reported to cost $1700, a clinic abortion in Fredericton costs $700-$850).

It did, however, create a serious impediment to women accessing abortions. While hospital abortions are funded by Medicare, many women are not eligible because they do not have timely access to a doctor to make the referral and certify that the procedure is medically required. Thousands of New Brunswick women are currently on waiting lists for a family physician. Beggars can’t be choosers and so New Brunswick women are not in a position to inquire whether their family doc provides reproductive care, nor can they afford to forego all primary care while waiting for a non-discriminatory physician to take new patients. Unlike in the rest of Canada and contrary to federal and constitutional law, New Brunswick women have to pay out of pocket for clinic-based abortions.

Dr. Morgentaler was undeterred by his long march through courts and prisons. In 2002, he brought a new challenge in the New Brunswick courts, this time to s. 2.01 of the Act and to Schedule 2 of Regulation 84-20. The Province, presumably knowing full well that there was no reasonable chance to succeed on the merits, and certainly knowing that Dr. Morgentaler was by now very elderly, adopted a litigation strategy of delay. It challenged the standing of Dr. Morgentaler and when it lost, proceeded to appeal that decision. Anti-choice organizations sought intervener status and when they lost, sought to appeal. Seven years later, in 2009, the New Brunswick Court of Appeal ruled that Dr. Morgentaler did indeed have standing to challenge the legislation. Ironically, the Court relied on Dr. Morgentaler’s extensive experience as a litigant and his financial wherewithal to support the notion that he was in the best position to bring the challenge:

It is, as well, worth bearing in mind that Dr. Morgentaler brings to the judicial arena financial resources and legal expertise which will undoubtedly help level the playing field and greatly improve the chances that any judicial decision on the merits is fully informed both factually and legally.

The Province did not appeal the decision that time, but it did not need to. By the time the Court of Appeal ruled, Dr. Morgentaler had spent roughly one million dollars on the litigation. In 2008, the Clinic had been damaged by a flood, causing an additional cost of $100,000 in repairs. While other downtown businesses were reimbursed, no such compensation was granted to the Clinic. By 2009, Dr. Morgentaler had been worn down financially. He continued to make contributions to ensure that no woman would have to be turned away. After his death in 2013, his estate could no longer support these payments.

Another New Brunswick physician sought to challenge the discriminatory law through a mechanism ostensibly designed to address discrimination without requiring extreme wealth of the litigant, namely the human rights process. Again, the Province adopted a litigation strategy that sought to avoid a ruling on the merits. It challenged the standing of the physician to bring the complaint. The Human Rights Commission denied the challenge and referred the complaint. The Province challenged the standing before the Board of Inquiry. The Board of Inquiry denied the challenge as a preliminary matter and directed that the standing issue be considered as part of the case on the merits. The Province appealed the preliminary ruling of the Board of Inquiry. After more than a year, the Court of Queen’s Bench ruled that the physician did not have an arguable case. The complainant physician was not able to appeal the Court of Queen’s Bench decision before the expiry of the appeal period, fearing reprisal if her identity became known. A motions judge of the Court of Appeal refused to extend time. In the course of so doing, he ridiculed the difficulty of the complainant in finding legal assistance to appeal by stating that “other than expressions of discouragement and an unwillingness to pay a large retainer, A.A. offers no explanation for her failure to respect the time limits.”

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When the closure of the Clinic was announced, the Minister of Health indicated that he was unable to comment because the matter was before the courts. This is disingenuous. The Department had been approached by the clinic in the weeks before the announcement to advise the Minister and to discuss transition planning. The Department did not respond to the overture. Also, while the matter may not have been closed, no action has been taken since the ruling of the Court of Appeal nearly five years ago. The litigant is dead. The closure of the clinic was not in issue in the court. It is difficult to see how a statement made by the Minister indicating how the Province intends to close the gap in service could possibly prejudge any ongoing litigation.

The net effect of these developments is that despite clear law on the right to access funded abortions, the provincial government will be able to continue to discriminate against women with impunity. There simply is no litigant who can match the financial litigation power of the government, no court willing to step in to preserve the rights of the most vulnerable women in the province and no administrative entity willing or able to protect women from doctors who believe their licence to practice medicine includes the licence to coerce a woman to carry a pregnancy to term. This failure is sufficiently profound to make a mockery of the rule of law. It is happening in a small province far away from the power centres of the country. It affects poor women, rural women, immigrant women, mothers of small children and others who cannot afford to simply leave the province to get abortion care. There are many justice failures in this country, but this one sits in my office, crying with fear and rage.

 

 

Jula

 

Joanne Conaghan and Yvette Russell consider progressive legal strategizing through 'rape myths' controversy

Taking on Helen Reece’s mythologizing…..

New in Print: Joanne Conaghan and Yvette Russell Rape Myths, Law, and Feminist Research: ‘Myths About Myths?’. In: Feminist Legal Studies, Vol. 22, No. 1, 2014.  Feminist Legal Studies is available via Springer Link here.

Read the introduction here.

ABSTRACT: In an article recently published in the Oxford Journal of Legal Studies, the legal scholar Helen Reece argues that the prevalence and effects of rape myths have been overstated and the designation of certain beliefs and attitudes as myths is simply wrong. Feminist researchers, she argues, are engaged ‘in a process of creating myths about myths’ in a way that serves to close down and limit productive debate in this ‘vexed’ area. In this article we argue that Reece’s analysis is methodologically flawed, crudely reductionist and rhetorically unyielding. We locate Reece’s analysis within the wider theoretical field to show how her failure to engage with feminist literature on rape other than in the narrowest, most exclusionary terms, yields an approach which impedes rather than advances public understanding and panders to a kind of simplistic thinking which cannot begin to grapple with the complexity of the phenomenon that is rape. We conclude by emphasizing the continuing commitment of feminist researchers carefully to theorize and (re)map the fraught field of progressive legal strategizing in order to identify and counter the kinds of risks and shortcomings of political activism with which Reece is rightly concerned.

See also

Nov. 28 2013 Davina Cooper “Question Everything? Rape Law & Free Speech”  http://criticallegalthinking.com/2013/11/28/question-everything-rape-law-free-speech/

At one level, the con­flict con­cerns how crim­inal law and pro­cedure treat (and should treat) rape — whether “or­dinary” people have a series of be­liefs about rape that make them less sym­path­etic (than they should be) to women vic­tims. At an­other level, the con­flict is about speech — about what speech is, what it does, and our re­spons­ib­ility for its ef­fects. Helen poses the ques­tion, why is rape dif­ferent? But, in the face of “free speech” calls to de­fend aca­demic freedom and the right to ques­tion everything, I want to ask, why is speech dif­ferent? Is it priv­ileged simply be­cause ex­pres­sion and com­mu­nic­a­tion are priv­ileged, or be­cause it rep­res­ents an ex­cep­tional way of ex­pressing opinion or ques­tioning re­ceived norms?

Nov. 15 2013 Sarah Keenan and Yvette Russell “Rape is Different:  Academic Impact Sinks to New Lows” http://criticallegalthinking.com/2013/11/15/rape-different-academic-impact-sinks-new-lows/

The LSE is a pres­ti­gious in­sti­tu­tion of higher learning whose public de­bate series pur­ports ‘to po­s­i­tion LSEat the centre of de­bate in all areas of the so­cial sci­ences… [and] to en­hance the School’s repu­ta­tion for in­tel­lec­tual, chal­len­ging ideas and dis­cus­sion with a broader public audi­ence.’ But far from opening up a cut­ting edge de­bate, the so­cial media pro­mo­tion, public event and media cov­erage sur­rounding Reece’s art­icle in fact closes down and severely limits careful, con­sidered and evidenced-​based dis­cus­sion about rape and rape law, al­most all of which con­tra­dicts Reece’s and Hewson’s claimsThese claimsare not new or in any way path-​breaking.

Helen Reece  http://ifls.osgoode.yorku.ca/2013/06/myths/

 

social media as space of meeting

For all my dear friends and colleagues who are mystified, delightedly mystified, i think, about social media,

 

This is mainly generational, but not completely, you should know.  Friends who cheerfully call themselves luddites, colleague/friends who relish their self label of dinosaur (you know who you are! Yes. You.).  So this post is not to proselytize.  I don’t for a second think that everyone can or should do this stuff.  BUT, perhaps those folk might be interested in a little illustration of how these things work, that is, the ways in which they are not simply about the technology, but about different modes of sharing ideas.

I think of myself as a person who loves technology, but not for it’s own sake. I want it to help me do what i want to do or give me new ideas about what i want to do.  I usually don’t want to be a “early adopter” – I would prefer that someone else sort through the growing pains, wait till it becomes cheaper and better, and then I want to get in on it.  Otherwise it is too much wasted initial effort of getting up to speed and too many closets full of devices quickly abandoned or “upgraded” (you know who you are too).

For instance, technology helps me procrastinate more passionately.

But it isn’t all that. And “social media” as a subset of technology, enables connections that you might not otherwise be able to make.  Allow me to illustrate with a short collection of tweets between strangers.  Do not be alarmed – this will only take a minute. And it is easy because wordpress allows simple embedding of tweets! Ignore that last sentence if you find it bewildering, or too much information.

I was messing around searching what pops up on twitter if you search #ff (which stands for follow friday, but designates a Tweet in which someone is recommending another twitterer) & feminist (I do this sometimes during moments where i’m “watching” kids movies and shows with my kids, this is a kind of multitasking that, in my view does no harm, because if the show gets problematic, I can hear that happening, demand a pause, force a discussion of the problem, and then get back to my internet messing around). Anyway, this did:

So, i went to check out the Ladydrawers, because that sounded interesting, doesn’t it? Main ladydrawers site here, and the fashion race sex gender project here.
The tweet and the comic made me think (kids also wanted to see them, which obviously is better than TV, so yay for multitasking). On twitter, I said:


(referencing @beatonna is me “tagging” one of my favourite comic authors, Kate Beaton, the artist/author behind Hark, A Vagrant (book & blog) – remember strawfeminists? She will get a little notice that she was mentioned and who knows maybe she is interested and if not easy enough for her to ignore).

@sambradd, whose #ff started this for me, immediately sent me a tip about another artist I should check out, in the process alerting that artist to the conversation by putting her twitter name into his tweet:


And the @ladydrawers folks noted:

And then @makerofnets, the artist Kara Sievewright, also chimed in

You should have a look at her things –
for povnet

Every Tool Shapes the Task from PovNet Society on Vimeo.

her blog is here

Finally, (or at least finally for now), I thought I might have something that these artists might be interested in, and so I wrote

That is me sending all the people in the conversation a link to the IFLS post on Mikimosis and the Wetiko, (“project by the Indigenous Law Research Clinic (Faculty of Law, University of Victoria), the Indigenous Bar Association and the Truth and Reconciliation Commission of Canada, and funded by the Ontario Law Foundation.” see here for the project website), because given the conversation thus far, and the fact that both Bradd and Sievewright are located in BC, they might be truly interested and curious.

So that’s in a nutshell what I get out of it. the possibility of tossing out ideas, making quick connections, sharing the excellent work of others. Whether this turns into anything (possible collaboration on knowledge dissemination a la Mikimosis & the Wetiko, or Feminist Legal moments in graphic form) is another story – but that is always the case with these connections, isn’t it, even the ones you make at the coffee table at CLSA. And browsing through the work of the artists here – really fabulous.

tentative benefits
1. Fast (though it definitely takes time & needs discipline to not take all your time, the interactions described above happened relatively quickly – it’s the volume of what you might do on social media is the problem.
2. doesn’t have to be intellectually vacant
3. allows connection with similar interests across disciplines and outside the academy
Hope you enjoy/understand. If you already understood social media, you probably aren’t still reading.

 

Explaining the appeal of asymmetrical criminalization: Jula Hughes (UNB), Vanessa MacDonnell (Ottawa) & Karen Pearlston (UNB) on options, Bedford, and the role of legal professionals

Many thanks to law professors  Jula HughesVanessa MacDonnellKaren Pearlston for this very thoughtful exploration of the debates about “what next” After Bedford.  

Those new to the issue might wish to look at previous IFLS posts on Bedford here, and/or to listen to the tape/read the transcript of the [ifls co-sponsored] After Bedford panel from January 24, available here.  Finally, I think that Kate Sutherland’s  2004 “Work, Sex, and Sex-Work: Competing Feminist Discourses on the International Sex Trade” 42 OHLJ  available online here would be a good read alongside this post (“By exploring the respective emphases of radical feminists and sex radicals—sex or work or sex-work—my aim is to get to the bottom of their very different perspectives on the international sex trade.  My particular focus will be on the role assigned to the sex worker in each of these feminist theoretical discourses and on the implications of that for political and legal activism in the international arena.”)

  

Is sex work inherently harmful? If so, which harms are inherent, which are the product of misogyny and patriarchy, and which flow from criminalization? Is sex work simply another form of “work” best understood and regulated through a labour law paradigm? Or is it somehow different? These and other difficult questions face individuals engaged in sex work, individuals outside the trade, politicians and academics following the Supreme Court’s recent decision in Canada (Attorney General) v Bedford.

Advocates hold a range of views on these questions. The values that underpin these views are as contentious as the evidence on how different forms of government regulation affect sex workers. However, there is solid evidence on some points. First, some laws regulating sex work are harmful to sex workers. Second, some forms of sex work are inherently risky, particularly subsistence sex work. The Supreme Court gave effect to the evidence on these points in Bedford. There, the Court struck down the bawdy house, communication, and living on the avails provisions of the Criminal Code.[1] In a unanimous opinion, the Court concluded that criminalization increased the risk of violence to sex workers and that this increased risk was an unjustified violation of their s 7 rights.[2]

The Supreme Court suspended its declaration of invalidity for one year. Justice Minister Peter MacKay has indicated that the federal government will introduce amendments to the Criminal Code within the next year. While there was consensus among feminist advocates before the Supreme Court that the existing laws cause harm to sex workers and that some of the safety aspects of sex work could be addressed by government regulation, there is a divergence of views not only about the best way to keep sex workers safe, but also about the meaning of living safely, the modes and means of oppression, and about the appropriate political strategies to be used now that these provisions have been found unconstitutional.[3] It is important that the current debate about options acknowledges the difficult issues raised by the regulation of sex work, and that those involved in the debate pay attention to the nuances of the arguments being made by both abolitionists and those in favour of decriminalization.

feminists who favour asymmetrical criminalization do not all do so for the same reasons.

Asymmetrical criminalization has broad appeal because it appears to leave marginalized women alone while taking aim at their clients. It has mainstream appeal because the tropes about sex workers being vulnerable women who must be protected remain widespread. It will likely appeal to the Conservative government because it would permit them to advance their law-and-order agenda while appearing to take action that is pro-woman. It also appeals to many feminists, who believe that the harms associated with sex work are largely attributable to clients, or, at the least, that workers will be in a better and safer position if clients are the focus of criminalization.[4] However, feminists who favour asymmetrical criminalization do not all do so for the same reasons. Organizations like the Native Women’s Association of Canada (NWAC) and the Canadian Association of Elizabeth Fry Societies (CAEFS) are likely motivated by their experiences representing marginalized, criminalized and victimized women. In contrast, lawyers and law professors are often invested in the symbolism of sex work for women’s equality, an investment that has at times contributed to a polarized debate.

In our view, there are many potential problems with asymmetrical criminalization, not least of which is that it seems to replicate the harms associated with the previous legal regime, albeit for a somewhat different group of women.[5] In our view, the harms identified in Bedford were caused by criminalizing sex workers, thereby subjecting them to systemic harms and increasing their vulnerability to predators on the streets and within the carceral system.

How can we, as feminist lawyers and academics, help build upon this important – if fragile – progress

The Supreme Court’s affirmation that sex workers are human beings with a right to self-protection is a major step forward in the official discourse, even though the Court in its written decision reverted to the language of prostitution and prostitutes in describing sex workers (in the oral hearing, the terms sex work and sex workers had been used). It is also significant that the Court recognized that the historical goal of eradicating the “nuisance” of indoor and outdoor sex work is no longer acceptable where the lives and safety of sex workers are at risk.[6] How can we, as feminist lawyers and academics, help build upon this important – if fragile – progress?

In this post, we begin by discussing the international experience with the regulation of sex work. We then discuss the constitutional issues that might be raised by asymmetrical criminalization, before examining whether Canada could improve upon existing models of regulation.

International Experience

Many contributors to the debate suggest that Canada should be guided by international experience. Indeed, there is much to consider. Sweden famously imposed asymmetrical criminalization on purchasers of sexual services in 1999. What is less well known is that when Sweden adopted the Sex Purchase Act it maintained some of the kinds of legislation struck down by the Supreme Court in Bedford, for example, prohibiting the operation of brothels.[7] It also engaged in very extensive public consultation before the Act was adopted, beginning with a commission of inquiry in 1993.[8] Even less attention has been paid to the enhancements to social benefits legislation and to services available to some sex workers as an integral part of the Swedish model.[9] Norway, Iceland and, to a more limited degree, Finland, have adopted similar models. The models adopted in these Nordic countries have been characterized as a great success,[10] a miserable failure,[11] and everything in between.[12] Much of the North-American literature on the Nordic models pays too little attention to the historical, social and political context in which the schemes were enacted.

The competing model of decriminalization is being pursued by two other European countries, the Netherlands and Germany, as well as by New Zealand. Again, there is profound disagreement about whether decriminalization in these countries has been a success, a failure, or a bit of both. As in the case of the Nordic model, insufficient attention is being paid to the social and political context of decriminalization. For example, public opinion about sex work in Sweden was markedly different than in Germany even prior to any legislative change.[13]

The Swedish law and the vigorous public relations campaign that accompanied it appears to have been somewhat of a success in terms of altering urban Swedes’ opinions about the purchase of sexual services.[14] This may explain why the online purchase of sexual services in Sweden has grown at a lesser rate than in other European countries.[15] Even the staunchest supporters of the Swedish model do not claim that it has accomplished its primary policy goal of abolishing sex work, however.[16] The effect of asymmetrical criminalization on the scale of sex work is contested.[17] At best, it can be said that some of the harms that were expected from the law (further marginalization, driving the trade further underground) either have not materialized, not materialized at the expected rate, or have been elusive to prove, as suggested in an evaluation of the law by the Swedish government. The instance of human trafficking related to sex work continues to be difficult to evaluate, but is thought to have either diminished, stayed stable, or at least not grown at the expected rate.[18]

In the Netherlands and Germany, the sex trade is booming. The rate of sex work was already higher in these countries than anywhere in Scandinavia prior to recent changes in the law. Sex work is highly visible in both countries, particularly in urban areas. Sex work has become safer in Germany.[19] The picture is less clear in the Netherlands, where organized crime appears to have increased its role in the sex trade.[20] The reduction in the (already comparatively low) rate of violence against sex workers in Germany appears to be real, but some scholars have cautioned that the overall incidence of violent crime related to sex work may nevertheless be higher. This is argued because the scale effect (growth of the industry) may outpace the improvement in safety.[21] The prices for sexual services have essentially collapsed in Germany, making sex work unattractive for many German women and promoting sex-work related immigration.[22] One of the effects of decriminalization is that Germany has become a sex tourism destination.[23] According to Alice Schwarzer, Germany’s most prominent abolitionist, France, Italy and Scandinavian countries are source countries. This casts some doubt on whether the proven shift in public opinion in Scandinavian countries is translating into significant behavioural change.

What should we learn from the comparators? Perhaps the first lesson is that the sex trade is a global phenomenon. The language of abolition with its promises of human dignity and solidarity among all women is profoundly appealing, but it is unlikely to translate into significant improvements in the safety of all sex workers. It is also likely to be co-opted by a Conservative government with a large law-and-order agenda.

The fact that the international experience with the Nordic model is not encouraging does not mean that decriminalization will bring the changes predicted by its advocates, either.[24] Even assuming exhaustive and sensible regulation of workers’ safety, public health and zoning, the market for sexual services in Canada would likely see significant growth in response to decriminalization. Poor women, men and trans people from Canada and abroad would continue to be the probable recruits into a trade that would likely be subject to the capitalist excesses of price cutting, a neoliberal rhetoric of choice, and possibly, the continued attention of organized crime. The trade will likely become safer, but growth could outpace safety improvements in Canada as well, particularly if decriminalization was not accompanied by significant regulatory protection.

The Constitutional Issues Raised by Asymmetrical Criminalization

What does the Canadian Charter of Rights and Freedoms have to say about the constitutionality of asymmetrical criminalization? Such a proposal seems to address at least some of the concerns that led the Court to invalidate the provisions at issue in Bedford. The underlying activity itself would be criminalized, reflecting an (apparent) majoritarian disapprobation of sex work. And the burden of criminalization would be aimed at purchasers of sex work, not sex workers themselves, who are often marginalized and vulnerable.[25]

Altering the legislative objective…would mean that the Court would be weighing a far more significant legislative purpose – the prevention of exploitation, harm and marginalization – against the potential harm to sex workers caused by criminalization.

The matter is not so straightforward, however, as either a legal or a factual matter. We can safely assume that if the government chooses to criminalize sex work, it would enact a statute that includes an extensive preamble.[26] This preamble would likely state that the purpose of the amendments is to address the marginalization and exploitation of women through sex work. It is unlikely that the government will acknowledge that not all sex workers are women. While the focus of the bawdy house and communication provisions at issue in Bedford was to eradicate social nuisance[27], the purpose here would be to reduce harm, marginalization and exploitation.

Legislative purpose matters greatly to the s 7 analysis. The Court in Bedford concluded that the harm caused by the bawdy house and communication provisions was grossly disproportionate to the legislative objective, and that the avails provision was overbroad, again in relation to the legislative objective.[28] Altering the legislative objective as described above would mean that the Court would be weighing a far more significant legislative purpose – the prevention of exploitation, harm and marginalization – against the potential harm to sex workers caused by criminalization. Moreover, the Court in Bedford was very clear that the fact that sex work itself was legal played an important role in the analysis. If the underlying activity were criminalized, that might provide another basis for distinguishing Bedford.

The plot thickens, however, in four ways. First, the legislation would no longer target sex workers themselves, but instead would target purchasers. Any harm to sex workers occasioned by the legislation would therefore be incidental. Would this meet the “sufficient causal connection” test for establishing a Charter breach affirmed by the Court in Bedford?[29]

Second, the Supreme Court of Canada’s decision in PHS Community Services Society (Insite) [30] suggests that the illegality of the underlying act need not foreclose a successful constitutional challenge. In that case, the Court was prepared to find a constitutional violation notwithstanding that the Charter claimants were engaging in unlawful activity. When the government refused to grant an exemption from the Controlled Drugs and Substances Act (CDSA)[31] for a safe injection site, the Court held, it violated the s 7 rights of the employees and the patrons of Insite. The fact that the patrons of Insite were committing an offence by possessing illegal drugs did not preclude them from bringing a constitutional claim.[32] The Court concluded that because addiction was an illness, drug users did not necessarily have a choice about whether to engage in this unlawful activity.[33] The Court in Bedford accepted similar arguments about the nature of “choice” when it comes to engaging in sex work, though the way the court understood choice in Insite and Bedford are not identical.[34]

Third, Insite also suggests that a law will be found to be arbitrary where it “undermin[es] the very purposes of the” statute.[35] In Insite, the legislative purpose was to protect “public health and safety.”[36] By declining to provide an exemption to the CDSA, the federal government was acting at cross-purposes with the goals of the statute. It is an interesting question whether a regime that criminalizes the purchase of sexual services and in doing so causes harm to the very population it seeks to protect would survive an arbitrariness assessment.

Fourth and finally, the Court in Bedford held that a law depriving a single sex worker of her s 7 rights would be unconstitutional. This means that a Charter claimant need not establish the kind of systemic deprivation of rights that emerged from the evidence in Bedford. It also means that any new law is potentially vulnerable to constitutional challenge.

In all likelihood, a court hearing a challenge to asymmetrical criminalization would conclude that the causal connection requirement was met.[37] The question would then become one of balancing, whether as part of the arbitrariness, overbreadth, or gross disproportionality analyses. How would the Court balance Parliament’s efforts to combat perceived harms to sex workers against the residual harm those provisions cause? On the one hand, the Court concluded in Bedford that the deprivation of a single sex worker’s rights would be sufficient to invalidate a prostitution law. This suggests that asymmetrical criminalization is on shaky ground. On the other hand, the Court in Bedford also indicated that Parliament is owed some deference in effecting this balance.[38] Given the mixed state of the international evidence, it might be difficult for the Court to invalidate a legislative effort framed as addressing marginalization and exploitation.[39] It might also be difficult for the Court to conclude that the impact was grossly disproportionate in relation to the legislative objective, even if some sex workers were placed at greater risk. Following Insite, an arbitrariness argument might be more successful.

In short, Bedford sends conflicting messages about the constitutionality of Parliament’s options. Deference is owed to Parliament[40], and yet a violation of constitutional rights in respect of a single claimant is sufficient to ground a successful Charter claim. This seems to place an extremely stringent standard on government.[41] It also makes it very difficult to predict whether a future Charter claim would succeed. It is almost certain that a law criminalizing purchasers would not be overbroad. This would leave the principles of arbitrariness and gross disproportionality. In deciding whether a new law was grossly disproportional, the Court might be forced to choose between its commitment to protecting individual rights claimants and recognizing the difficulty government faces in designing a legislative scheme that is effective and yet constitutional.[42] As we have noted, an arbitrariness argument might be more promising.

Can We Come Up with Something Better?

So what should Parliament do? As a starting point, it is important to acknowledge that sex work raises complicated issues. Those of us who advocate for the position that sex work should be treated as a job come from a variety of viewpoints. Some find the existence of sex work disturbing but think that labour rights are the best way to improve conditions. Others, including the applicants in Bedford, have no objection to sex work.

In our view, sex work should be recognized as a point on the continuum of the sexualization of the labour and life chances of women and sexual minorities. In many cases, it may just simply be the best of a series of unappealing jobs. Many may prefer other work if it were available, had flexible and family-friendly hours, and if it paid well. The coercive elements of sex work, where they exist, are also the result of a lack of other alternatives, even where there is a specific perpetrator.

The criminalization of sex work is problematic whether it targets sex workers, clients or both. This is because criminalization invariably brings with it further marginalization, and private as well as state-sponsored violence. A regulatory approach grounded in labour rights and, to the extent necessary, labour regulation, seems to provide a better framework. It may be difficult to completely block the neoliberal entrepreneurization of more privileged sex workers, but to critique the labour rights approach on the basis that only some workers will be able to take up privileged working conditions while most struggle on in the trenches is tantamount to saying that it is wrong for privileged women like the authors and many of the readers of this blog to have professional jobs while most women have bad jobs or no jobs at all. Of course it is wrong that some of us are so privileged while others are not. The issue is privilege, not sex work, and how we deal with that privilege.  Do we support the self-organization of those with less, or do we sit in judgment of them? It seems probable that the disconnect between professionals and the broader labour movement makes it difficult to believe in the power of collective action by weak and disenfranchised people. But the lesson of organized labour is that standing in solidarity means supporting the struggle of those involved in the work rather than setting the parameters of the struggle.

As legal professionals, we need to aid the process of listening to sex workers by offering ideas, explaining the legal terrain, and suggesting a range of potential solutions so that the workers have the full panoply of potential options to think about. Decisions cannot and should not be made without the involvement of sex workers.

In the end, the specific form of regulation may not matter nearly as much as advocates of any one model might suggest. Any effects prostitution laws or their absence might have will be outweighed by ongoing cuts to programs for Aboriginal Canadians, women, children and low income citizens. They will be dwarfed by the effects of a continued evisceration of labour rights, by punitive immigration policies, and by austere social welfare legislation. And they will be undermined by a public rhetoric that erodes solidarity between citizens and positive commitments that we might otherwise make to each other as members of one society.  Within that ever more deficient framework, however, it is surely preferable for sex workers to not also be subject to the violence and oppression of criminalization.

Why, then, do so many advocate for asymmetrical criminalization? The approach is attractive because it purports to provide a solution to the problems associated with sex work by punishing those identified as the source of the problem. For hundreds of years, this person was identified as the sex worker. One of the victories achieved in Bedford is that sex workers can no longer be easily and legally characterized as “the problem.” A transactional market rhetoric similar to the one that framed the earlier debate is now being deployed against clients, identifying clients as creators of a market demand and focusing on the contractual aspects of sex work as a purchase while ignoring the material and ideological context. Under the Nordic Model, the new equation is that sex work is bad, but sex workers are good; that sex workers are victimized by their clients, who are bad because they hire sex workers to do bad (yet legal) things. Treating clients as bad and sex workers as good makes it possible to maintain a clean dichotomy between victim and perpetrator. It avoids the need to talk about why so many of us so easily assume that sex work is bad.  That conversation might reignite unresolved struggles over heteronormativity, heterosexuality, and the complex ways in which we live our sexual lives. It is easier to protect our own sexualities and relegate the threatening power and violence dimensions to an “other” who is separated from us by class and life circumstance.

If we want to protect vulnerable women, it is unclear why we should focus so much on sex work. Moreover, often lost in the discussion is the fact that not all sex workers are women. Some sex workers are trans and some are queer men.[43] Surely this reality should factor into our discussions and our law reform proposals.

Are we sure that decriminalization will eliminate the harms associated with sex work? No. But we are convinced that criminalization is harmful. Further, as we have argued elsewhere, we are persuaded that the Nordic Model of asymmetrical criminalization would replicate and possibly intensify the vulnerabilities recognized by the Supreme Court in Bedford.[44]

Given our analysis of the constitutional context developed in the Supreme Court judgment and the evidence that the dangers to sex workers recognized in Bedford are also posed by the Nordic Model, we urge those who are concerned about sex work and sex workers to think beyond the criminal law when developing advocacy approaches. It took decades (and a serial killer) to amass an evidentiary record that finally convinced the courts of the harms caused by the existing prostitution laws. We should not be quick to adopt a law reform agenda that replicates the harm, aids the government’s aggressive law-and-order agenda[45], and could take decades more to overturn.



[1] Criminal Code, RSC 1985, c-46, ss 210, 213(1)(c), 212(1)(j).

[2] Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[3] See the facta of the Women’s Coalition and the Pivot Legal Society.

[4] There continues to be a dearth of empirical work on purchasers of sexual services. An interesting exception in the UK context is Teela Sanders, Paying for Pleasure: Men Who Buy Sex (Devon: Willan Publishing 2008).

[5] Phil Hubbard, “Regulating Sex Work in the EU: Prostitute Women and the New Spaces of Exclusion” (2008) 15 Gender, Place & Culture 137.

[6] Jula Hughes, Vanessa MacDonnell and Karen Pearlston, Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases after Bedford (ONCA)”  (forthcoming) (2013) Ottawa Law Review;

Bedford, supra at para 136.

[7] Dodillet, Susanne & Petra Östergren. “The Swedish Sex Purchase Act: Claimed Success and Documented Effects” Conference paper presented at the International Workshop: “Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges.” The Hague, March 3 and 4, 2011 at 4.

[8] Jari Kuosmanen, “Attitudes and perceptions about legislation prohibiting the purchase of sexual services in Sweden”. (2011) 14 European Journal of Social Work 247 at 249.

[9] See Judith Kilvington, Sophie Day and Helen Ward, “Prostitution Policy in Europe: A Time of Change?” (2001) 67 Feminist Review 78 at 82-83.

[10] Gunilla Ekberg, Kajsa Wahlberg, “The Swedish Approach: A European Union Country Fights Sex Trafficking” (2011) 2 The Solutions Journal.

[11] Dodillet, supra.

[12] Danna, Daniela. “Client-Only Criminalization in the City of Stockholm: A Local Research on the Application of the ‘Swedish Model’ of Prostitution Policy” (2011) 9:1 Sex Res Soc Policy 80.

[13] Kuosmanen, supra.

[14]Ibid.

[15] Ekberg, supra.

[16] Ibid.

[17] Danna, supra.

[18]Ibid.

[19] Germany had a much better safety record than Canada even prior to the 2001 legislation. Teela Sanders and Rosie Campbell “Designing out vulnerability, building in respect: violence, safety and sex work policy” (2007) 58:1 Br J Sociology 1 at 4. For post-legislation impacts, see: Barbara Kavemann, Heike Rabe and Claudia Fischer, “The Act Regulating the Legal Situation of Prostitutes – implementation, impact, current developments”, Berlin: Sozialwissenschaftliches FrauenForschungsInstitut e.V. 2007; Bundesministerium für Familie, Senioren, Frauen und Jugend, Bericht der Bundesregierung zu den Auswirkungen des Gesetzes zur Regelung der Rechtsverhältnisse der Prostituierten (Prostitutionsgesetz – ProstG). An English language version is available here.

[20] Sanders and Campbell, supra, at 4.

[21] Cho, Seo-Young, Axel Dreher and Eric Neumayer. “Does Legalized Prostitution Increase Human Trafficking?” (2013) 41 World Development 67.We are cautious about this finding in part because the article cited does not explicitly differentiate between trafficking and migration. Some feminist and anti-colonial scholars emphasize that differentiating between the two is important because referring to human movement across borders as trafficking when it is really migration leads to increased immigration control and more hardship for migrants in the countries that they travel to. See Joyce Outshoorn, “The Political Debates on Prostitution and Trafficking of Women,” (2005) 12 Social Politics 141; Janie A Chuang, “Rescuing Trafficking from Ideological Capture:  Prostitution Reform and Anti-trafficking Law and Policy,” (2009-2010) 158 University of Pennsylvania Law Review 1655. For a Canadian analysis, see Nandita Sharma, “Anti-Trafficking Rhetoric in the Making of Global Apartheid,” (2005) 17 National Women’s Studies Association Journal 88. Official crime statistics in Germany do not support the finding of an increase in sex-related human trafficking, suggesting a sharp decline instead.

[22] Brad Tuttle, “Germany Has Become the Cut-Rate Prostitution Capital of the World” Time Magazine (June 18, 2013). Low-paying sex work is not unique in attracting migrant workers, particularly migrant women. See: Sigrid Metz-Göckel, Mirjana Morokvasić and Agnes Senganata Münst, Migration and mobility in an enlarged Europe: a gender perspective (Opladen, Farmington Hills: Barbara Budrich Publishers, 2008).

[23] Tuttle, ibid.

[24] Gary Feinberg is typical in suggesting that decriminalization will result in a lessening of organized crime interest, less violence and better access to protective legal regimes. See: Gary Feinberg, “Prostitution in the Netherlands: Transforming the World’s Oldest Profession into the World’s Newest Industry” (2003) 19 Crime and Justice International 76.

[25] Bedford, supra at para 86.

[26] Peter Hogg, Allison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) 35 Osgoode Hall Law Journal 75 at 101-104.

[27] Bedford, supra at paras 130, 146.

[28] Ibid at paras 134, 139, 159.

[29] Ibid at paras 75-76.

[30] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 [Insite].

[31] SC 1996, c 19.

[32] Insite, supra at para 102.

[33] Ibid at para 99.

[34] Bedford, supra at para 86. Insite focused on addiction as an illness characterized by a loss of control over the need to consume the substance to which the addiction relates: Insite, supra at para 99. Bedford says that “[w]hether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money” (para 86).

[35] Insite, supra at para 136.

[36] Ibid.

[37] Bedford, supra at para 76; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 54.

[38] Bedford, supra at para 90.

[39] Chaoulli v Quebec (Attorney General), 2005 SCC 35; Sujit Choudry, “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 Supreme Court Law Review 501.

[40] Bedford, supra at para 90.

[41] Choudry, supra; Jula Hughes and Vanessa MacDonnell, “Social Science Evidence in German and Canadian Constitutional Law: Some Comparative Observations” (2013) 32:1 Natl J of Constitutional Law 23.

[42] Choudhry,  supra; Hughes & MacDonnell, supra.

[43] Trans sex workers in Canada lay claim to a long history and strong presence as sex workers. See Monica Forrester, Jamie-Lee Hamilton, Viviane Namaste and Mirha-Soleil Ross, “Statement for Social Service Agencies and Transsexual/Transgender Organizations on Service Delivery to Transsexual and Transvestite Prostitutes,” in Viviane K. Namaste, Sex Change, Social Change : Reflections on Identity, Institutions, and Imperialism (Toronto: Women’s Press, 2005) at 82-85, available on-line here.

[44] As we wrote in our commentary on the Ontario Court of Appeal judgment in Bedford, “The cloak of illegality that such a system would continue to place over sex work would continue to pose a danger to the lives and safety of the workers. Several studies have indicated that the Swedish law, enacted in 1999, has failed to reduce the number of sex workers or their clients. On the contrary, it has further stigmatized and marginalized sex work, leading to police crackdowns and driving indoor workers underground while leaving the most vulnerable on the streets. Sex workers who have continued to work outdoors reportedly face more dangers than they did prior to asymmetrical criminalization. Most of the “nice and kind” clients have followed the inside workers, leaving the outside workers to deal with men who demand more degrading activities, who pay less and are more likely to be violent or to refuse to use condoms. In addition, the threat of arrest has forced women to accompany clients to isolated locations, increasing the risk to them and also driving down their income because of the additional travel time required for each trick [references omitted], see Hughes, MacDonnell and Pearlston, “Equality & Incrementalism,” supra.

[45] See Tonda MacCharles, “Conservatives want more research done on prostitution laws,” Toronto Star, (14 Jan 2014), p. A9.

 

 

If you are interested in writing a response in a similar style, please get in touch with me, slawrence at Osgoode dot yorku dot ca.