Posted By Lauren Hanon
Exchanging sex for money in Canada is not illegal. This is the very first statement made by Chief Justice McLachlin in Canada (Attorney General) v Bedford. What makes sex work effectively criminalized are the provisions in the Criminal Code, which render the activities surrounding sex work illegal. These provisions were constitutionally challenged in Bedford.
In 2013, the SCC struck down three sections in the Criminal Code as being unconstitutional. These provisions were said to have violated the rights of sex workers under section 7 of the Canadian Charter of Rights and Freedoms, which protects “the right to life, liberty and security of the person”. The sections of the Criminal Code that were struck down were s. 210 (keeping, or begin found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution). The Chief Justice asserted that while the government has the right to regulate prostitution, a completely legal activity, the aforementioned provisions create extremely dangerous conditions for sex workers by limiting their ability to reduce risk and take precautionary measures to better protect themselves (para 60).
Section 210 of the Criminal Code
Section 210 makes it illegal to live in, enter into, or occupy a bawdy-house. As a result, lawful prostitution is confined to two categories: street prostitution and “out-calls” (where the sex worker and the client meet at a designated location). “In-calls” (where the client comes to the sex worker’s place of residence) are prohibited by section 210, seeing as the residence would be considered a place resorted to for the purpose of prostitution.
The court found that, on a balance of probabilities, in-calls is the safest form of prostitution. Therefore, by prohibiting in-calls under section 210 of the Criminal Code, sex workers have no ability to implement their own security measures, like receptionists or security guards, and it “interferes with provisions of health checks and preventative health measures” (para 64). This section forces sex workers into more dangerous situations, thus violating their right to security of the person under section 7 of the Charter.
Section 212(1)(j) of the Criminal Code
Section 212(1)(j) criminalizes living on the avails of prostitution of another, in whole or in part. This provision targets exploitative and parasitic relationships, like where a sex worker works for a brothel-keeper. In effect, however, it prevents sex workers from hiring people like bodyguards, receptionists, drivers, and other positions that would greatly reduce risks of client violence. This provision again increases the danger to sex workers and violates their right to security of the person.
Section 213(1)(c) of the Criminal Code
Finally, section 213(1)(c) prohibits any form or attempt of communication for the purposes of exchanging money for sex in a public space, or a place open to public view. Face to face communication is an essential tool for reducing the risks of street prostitution. Prohibiting sex workers from using this tool prevents them from screening prospective clients and engaging in any discussion about the terms of the work, such as condom use. This provision also has the adverse effect of displacing sex workers from known locations where they can implement safety precautions. Being forced to communicate in non-public spaces and spaces that are not open to public view increases the risk of dangers, such as assault. By greatly limiting the safety measures available to sex workers, this provision also violates their right to security of the person.
The SCC declared these provision invalid, although their invalidity was suspended for one year in order to give the government time to respond with new legislation. This new legislation took the form of Bill C-36, which received Royal Assent on November 6th, 2014.
Bill C-36 – or An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts – has been in effect for almost a year now. The changes made to the Criminal Code through Bill C-36 arguably endanger sex workers more than the previous provisions that were struck down. Pivot Legal Society has claimed that they are prepared to go to court again on the grounds that the new legislation is also unconstitutional if our new Liberal government does not repeal it as soon as possible. It seems as though the Bedford decision is only the beginning of legal changes to come for the health and safety of sex workers in Canada. It will be interesting to see what decisions our Liberal government will make in the near future!