Colby Cosh, National Post
Published: Friday, March 23, 2007
A dominatrix and two hookers walk into a recreation centre ? No, it’s not the start to a bad joke, and what these women were doing is no laughing matter.
On Wednesday, three members of the Sex Professionals of Canada (SPOC), an organization that advocates for and educates sex-trade workers, officially announced a long-awaited challenge to the anti-prostitution provisions in Canada’s Criminal Code. You want a punchline? These women are going to win. And provincial and municipal legislators might as well get ready, now, for the challenge of regulating a decriminalized sex business.
SPOC intends to argue that its members’ Section 7 Charter rights to life, liberty and security of the person are infringed upon by the Code. Prostitution is, in itself, a legal activity in Canada. (That is to say, it is not illegal to pay a person for sex.) But the group objects to the sections of the Code traditionally used to circumscribe it. These include Sec. 210, whose quaint Victorian language forbids the ownership, occupation, or management of a “common bawdy-house”; Sec. 212, the “living on the avails” provision, which makes it a crime even to live with or to be “habitually in the company of” a prostitute; and Sec. 213, which bans communication between prostitutes and clients in any public place.
There are three major reasons for thinking that SPOC is going to win its challenge. The first is the generally liberal disposition of Canadian appellate judges; they tend to be extremely deferential to the economically disadvantaged, fanatically feminist, and acutely race-conscious. SPOC is representing an industry that is mostly female, is largely aboriginal in some parts of the country, and invariably attracts the abused, abandoned and homeless. In a Canadian appellate court, that means sitting down to the poker table with three of a kind. The second reason is the 2005 Chaoulli decision, in which the Supreme Court ruled that private medical services and health insurance cannot be banned in the province of Quebec. In the 4-to-3 decision, Section 7 was used in a surprising way to subvert medicare, with three of the majority justices arguing that the challenged laws directly violated it and a fourth relying on the closely analogous Sec. 1 of Quebec’s provincial Charter. It’s true that the dissenting judges in Chaoulli specifically lashed out at the phenomenon of Sec. 7 overreach, and that the Court is probably looking for a good opportunity to establish that Sec. 7 is not a judicial weapon of infinite range and magnitude. But this isn’t it. SPOC’s demands are extremely modest when compared to Dr. Jacques Chaoulli’s long-shot crusade against medicare. Translated into plain English, the SPOC girls just want the freedom to conduct a legal business on private premises, to hire help, and to advertise. And that’s the third thing they have going for them: They are completely in the right.
Look past the archaic, euphemistic language in the Code. What does it mean to ban “bawdy-houses”? It means whores cannot organize a brothel where they can look out for one another and combine resources to buy medical care, security or insurance. What does the proscription against “living on the avails” mean? That a prostitute must work alone, shielded from the eyes of the law, unable to get bank credit or regularize her tax status or, hell, buy an RRSP if she wants one. What do the rules against “communicating” for the purposes of prostitution mean? It means most hookers have to do business through the window of a car, which gives them seconds to size up their customers, or over the phone, which hardly lets them do so at all.
As last year’s Senate justice committee report on prostitution noted, at least 79 sex workers were murdered on the job in Canada from1994 to 2003, and that figure doesn’t count the dozens of deaths allegedly attributable to Robert Pickton, nor does it include any of the 80-plus missing and murdered women whose cases are being investigated by Edmonton’s Project KARE task force. 85% of the known victims were killed by clients. Despite its tepid recommendations, the report concedes that even unregulated off-street prostitution, of the sort specifically targeted by the Criminal Code, is safer than street hooking. It contains damning data suggesting that the adoption of Sec. 213 coincided with an exponential increase in fatal violence among prostitutes.
Put it all together, and it is hard to disagree with SPOC’s spokeswomen when they accuse Canada of imposing a “death penalty” for prostitution. What pretended social gain from keeping the trade out of sight, out of mind and on the run can outweigh that?