Simone de Beauvoir Institute Applauds Court of Appeal for Ontario Decision Related to ProstitutionTuesday, November 30 1999
The Court of Appeal for Ontario recently ruled that two elements of Canada's prostitution laws cause harm to women (Canada Attorney General v. Bedford, 2012 ONCA 186: http://www.ontariocourts.ca/decisions_index/new_releases.htm).
Specifically, the Court argues that the bawdy house provisions and the living off the avails provisions of the Criminal Code violate the security of individuals who work in the sex trade and, as such, are unconstitutional. In more simple terms, the court argues that prostitution laws put women in the sex trade at risk of violence and that these laws violate the fundamental Charter rights of sex workers.
What the Ruling Means
The ruling removes barriers for women working in the sex trade that increase their vulnerability to violence and harm. It allows them to hire a driver or a bodyguard, for example, as a way to ensure their safety-practices that were previously criminalized (living off the avails provision). It enables women to work together out of the same apartment; this practice was criminalized under the bawdy house laws. The ruling means that women can work more safely and that they can work together.
Why We Support the Ruling as Feminists
- The ruling begins with the explicit statement that the question at hand is not about morality, but is rather one of constitutionality (paragraph 9). As feminists, we support a legal framework in which complex social issues are disentangled from patriarchal moral norms. Historically, the idea that women should not wear pants in church, the implicit condemnation of women who chose to have a child outside of marriage, or the notion that women who dress sexy in some way invite sexual assault and rape are different examples of the ways the patriarchal moral order has framed how women's actions, behaviours and dress have been considered, in society at large and in the legal arena. Full equality before the law for women is facilitated when "morality" is excluded from legal considerations.
- The decision protects the Charter rights of individuals marginalized and stigmatized through their work in the sex trade. It ensures that Charter rights are considered with regards to vulnerable members of society. Legal analysis that examines the situation of vulnerable members of Canadian society is of particular interest to feminists, given feminism's commitment to social justice and equality for the disenfranchised.
- The Court of Appeal decision is based on a thorough consideration of evidence, including social scientific research as well as the affidavits of women working in the sex trade. As feminist scholars working in the university, we support legal action and legal reform in which the evidence of women's diverse lives is considered.
- The decision means that women working in the sex trade will be able to protect themselves against violence in their work. The ruling means that women can work together to increase their safety. As such, this decision encourages women's collective efforts and their solidarity. We celebrate legal rulings that remove juridical barriers to women's collective organizing.
Reflections on the Ruling's Consideration of the Communicating Provisions
The Court of Appeal for Ontario's decision clearly states that the provisions of the Criminal Code related to living off the avails and bawdy houses violate section 7 of the Charter, the right to security of the person. We agree with this interpretation. However, the majority opinion of the Court of Appeal does not find that the communicating provisions related to prostitution also violate the security of the person, and as such lets these provisions stand.
This judgment means that communicating in public around the exchange of sex for money remains criminalized. With regards to this aspect of the ruling, we underline that women's autonomy in relation to work and sexuality is enhanced when women are afforded every opportunity to communicate. Likewise, we see sex workers' ability to protect themselves from violence facilitated when they can clearly communicate with potential clients about all matters related to their work.
Should the ruling go forward to the Supreme Court as expected, we look forward to further reflection related to the harm caused by the communicating provisions of the Criminal Code.
Also available in PDF: http://wsdb.concordia.ca/about-us/official-position-on-issues/documents/SdBIonProstitutionDecision2012.pdf
This ruling, having considered a wealth of evidence presented, clearly states that specific provisions of Canada's Criminal Code violate fundamental Charter rights of people working in the sex trade. Legal decisions which exclude morality, which uphold Charter rights of individuals stigmatized by their work, which allow women to protect themselves from violence, and which encourage solidarity among women workers are decisions to be celebrated by feminists.
Signed: Simone de Beauvoir Institute, Concordia University, March, 2012
Related page: Simone de Beauvoir Institute's Statement: A Feminist Position on Sex Work, 11.2010
This text in online here: http://www.alliancefeministesolidaire.org/2012/03/simone-de-beauvoir-institute-applauds-court-of-appeal.html