ONCA Canada v. Bedford

Like whoa! I am in a whirlwind of emotions today. Partly good and partly frustrated.

Today, the Ontario Court of Appeal announced it’s decision regarding Bedford v. Canada in the Ontario Superior Court of Justice. Justice Himel originally struck down sections ss. 210, 212(1)(j) and 213(1)(c) of the Criminal Code of Canada on September 28, 2010 as unconstitutional. However, not long after, the Attorney General of Canada and AG of Ontario opposed the application by Bedford, et al.

The government’s response can be read HERE. Basically, they said that the lower court’s decision is not binding because it did not follow a higher court’s previous decision (stare decisis) and that these sections did not pose risk to sex workers but rather that “the risk to prostitutes is inherent in the nature of prostitution itself.” Note: it is with these types of views that sex workers have previously faced and continue to face violence from both individuals and institutions; sex work is dangerous because of the indifference that institutions and individuals display towards sex work and sex workers themselves.

Justice Himel’s decision meant that these sections DO violate Section 7 of the Charter: life, liberty and security of the person. This means that, as cited in ONCA decision,

“Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence.”

Justice Himel’s decision meant that these sections DO violate Section 2(b) of the Charter: freedom of expression. This means that, as cited in ONCA decision,

“….does not meet the minimal impairment test. The expression being curtailed is not purely for an economic purpose, but is also for the purpose of guarding personal security, an expressive purpose that lies at or near the core of the guarantee.”

There was a lot of tweeting going on today and also a lot press releases from organizations that ROCK! You can check out some of those organizations’ press releases here:

A few things must be noted with this decision: It does not mean that a bunch of women are going to become sex workers now. It takes a lot to do this type of work and it is definitely not made for everyone. So, don’t think that this will cause the “moral fibre” of Canada to disintegrate. The moral fibre has long been tossed down the drain when Harper gained majority (just saying). It also does not mean that families are going to be ruined and marriages are going to be affected. Sex workers have families and relationships too! Sex workers are persons too! A brief outline of ONCA decision:

  • s. 210 and 212(1)(j) of the Criminal Code of Canada(CCC) are unconstitutional.
  • section 212(1)(j) are to be clarified that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”.
  • section 213(1)(c) does not offend the principles of fundamental justice; does not infringe the respondents’ s. 7 Charter rights; the application judge was bound by the Prostitution Reference to hold that s. 213(1)(c) is a reasonable limit on the right to freedom of expression under s. 2(b) of the Charter.

You can read over the entire decision yourself as I am not going to outline it paragraph by paragraph. The decision relating to communication/solicitation/s. 213(1)(c) was arrived on the basis that it did not mean the requirements for being “arbitrary, overbroad or grossly disproportionate.” I beg to differ, or at least agree with the dissenting judge. You can also read the reasoning/logic behind the dissenting decision which means this judge did not agree with opinions the majority. MacPherson J.A. did ultimately agree with the decisions relating to section 210 and 212 of the CCC. One important point that MacPherson highlights in the dissenting decision is this: My colleagues overlook evidence that, instead of reducing street prostitution, the communicating provision forces prostitutes into isolated and dangerous areas. MacPherson J.A. goes on to state, “By displacing prostitutes into isolated areas and discouraging them from working together, the communicating provision increases the risks faced by prostitutes. My colleagues disregard this displacement and assign no weight to its effects…Any measure that denies an already vulnerable person the opportunity to protect herself from serious physical violence, including assault, rape and murder, involves a grave infringement of that individual’s security of the person. The infringement caused by the communicating provision is especially significant in light of the reality that many prostitutes have few alternative means of protecting themselves. Putting aside the fiction that all prostitutes can easily leave prostitution by choice or practise their occupation indoors, the communicating provision closes off valuable options that street prostitutes do have to try to protect themselves.” This is important to note because sex workers who are most affected by this decision to stay section 213 are the ones who are most visible, who are ultimately the most vulnerable: street based sex workers. On a final note, MacPherson J.A. states, “For many prostitutes, safe working spaces are hard or impossible to come by…The world in which street prostitutes actually operate is the streets, on their own. It is not a world of hotels, homes or condos. It is not a world of receptionists, drivers and bodyguards.” This is ultimately true and cannot or should not be ignored. The image that is portrayed within the media or movies that sex workers either live a glamourous lifestyle or a very dark one filled with drug addiction. There is no in between. This is a problem because some individuals may never acknowledge the fact that sex workers may have families, relationships, or a place to call home. The frustrating part of today is that some individuals have taken the time to message me via social media and state that they agree with the decision. However, after much back and forth correspondence, there still exists some major misconceptions when it comes to sex work and sex workers. Some stating that sex work should be legal so that it can be regulated and policed. Sorry, but that is A MAJOR PART OF THE PROBLEM. Sex workers, especially outdoor sex workers are the most visible and are likely to experience over policing. In a report prepared by POWER, it was concluded that sex workers face stigmatization which causes them to be seen as the “other” and viewed as a threat to society. These views and images of sex workers are then embedded into institutions, like policing agencies, which leads to social profiling and over-policing (view the report HERE). Some also stated that they agree with this decision so that this profession could be ensured that health and safety regulations are followed by all. One of the main issues that sex workers face is access to such services. This is one the reasonings for the decriminalization of sex work. Sex workers, as outlined in the report by POWER listed above, “…are not passive and actively seek to minimize the physical, sexual, financial, and health risks they confront.” The one resource they do not access is the criminal justice system. With this being said, we have to be aware of how the media portrays the decision of this case. I have seen titles such as “Sex workers considered ‘real citizens'” and “Appeals court legalizes brothels”. The idea that sex workers are not seen as “real citizens” contributes to the dehumanization of same individuals. The idea that a bunch of brothels are going to pop up everywhere is also untrue. As I stated before, these decisions will not cause the “moral fibre” of Canada to disintegrate, and that it takes a lot to do this type of work. These decisions were made in an effort to make it SAFER for sex workers to conduct business. Sex workers are persons in Canadian society deserve the same protection as guaranteed to everyone else. Sex workers are persons too!

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