McGill Research Group on Health and Law: Sex Work, Rights and the Criminal Law

Posted By Laura Crestohl – Nov. 4, 2012

On October 31st, the McGill Research Group on Health and Law hosted an interdisciplinary panel entitled: Sex Work, Rights, and the Criminal Law: Reflections on Bedford v Canada. The panel featured McGill Law professor Daniel Weinstock, attorney for applicant Terri Jean Bedford and Osgood Hall Law professor Alan Young, and Consultant for Stella (a community group offering resources for sex workers) and recent McGill Law graduate, Tara Santini.

The panel centered on the Bedford case, a constitutional challenge being raised by three sex workers surrounding three criminal code provisions, namely:

  • section 210 which outlaws the keeping of a “bawdy house”,
  • section 212(1)(j) which bans people from living off the avails of prostitution and;
  • section 213(1)(c) which prohibits communicating in public for the purpose of sex work.

The applicants submitted that these provisions infringe on their constitutionally protected right to life and security of the person by making it illegal for them to take certain precautions which would make their work safer. Thus, the prohibitions put their lives and security in jeopardy. The Ontario Superior Court of Justice struck down all three provisions, while the Ontario Court of Appeal struck down the bawdy-house provision, while clarifying that it is only prohibited to live off the avails of prostitution in circumstances of exploitation. The Court allowed the appeal on the communication prohibition, upholding that specific provision. On Thursday, October 25, 2012, the Supreme Court of Canada granted leave to both the appeal of the Crown and the respondents’ cross-appeal.

Each member of the panel looked at the case through a different lens. First, Professor Weinstock outlined public policy concerns and the ‘reduction-harm’ approach. He argued that if there is a behaviour that we will never agree on as a society, the best approach is to reduce its harm and control it through regulation. Professor Young spoke about the history of the criminal code provision at issue and how they were not intended to outlaw prostitution per se, but instead to help regulate the ‘streets’. He explained that now the detriment caused by these laws is grossly disproportionate to the ‘bad’ that they supposedly prohibit. Santini spoke about the difficulties that arise in representing sex workers, because they are often ‘invisibilized’ in society and are thus often rendered unable to speak for themselves.

The panel provided a useful overview for students, researchers and faculty of how this case might affect Canadian sex workers and how we can best approach protecting the health and safety of vulnerable members of our society.

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