On solving the diversity problem in the judiciary

Ah yes, diversity. I appreciate the Toronto Star’s recent editorial discussing the issue of diversity in our judiciary. I also always appreciate people grabbing for the lowest hanging fruit.

Pointing out that our judiciary needs more diversity would be stating the obvious. People know that and people see it (and the people who choose to ignore it are already a lost cause). Nevertheless, as the editorial highlighted, the people like Brown/Black/Indigenous folks (note: the editorial only mentioned Black and Indigenous), who are most likely to come into contact with the justice system will have little confidence in the system.

It is always frustrating to read these types of articles. Because in light of the comments such as the people most likely to come into contact with the justice system (or who are overrepresented in same) will have little confidence in the system, those comments suggest that there is a space for people like me on the bench to only serve that purpose: Increase the confidence that Brown/Black/Indigenous folks have in the system.

It is not the entire judiciary that has a diversity problem. Rather, it is the system that is the entire problem.

As someone who believes in complete abolishment of the entire prison industrial complex because of its longstanding history of locking up Brown/Black/Indigenous folks and its historical/present-day links to slavery and colonialism, I am not here to affirm the validity of that entire system; the entire system needs to be re-examined and the power to deliver, find, and re-imagine justice needs to return to communities who are most impacted (negatively) by the justice system.

It is not a hard question to address, “How do we deal with the overrepresentation of Brown/Black/Indigenous folks in the prison system?” Do we need a more representative judiciary? Sure we do. But we also need to stop arresting and criminalizing Brown/Black/Indigenous folks. We also need to actually look at what the prison industrial complex is doing: It is locking up poor, racialized folks who exist at the middle of many intersecting oppressions. Further criminalizing these communities is the heart of the problem.

While I acknowledge and recognize people for their efforts, it is hard to sit back and give gold stars for what people should already be doing (and should have been doing a long time ago) without the public declarations or acknowledgements that they are addressing the problem.

Even still, what is the problem? As the editorial highlighted: Part of the problem is the overrepresentation of Brown/Black/Indigenous folks in the (in)justice system.

If the question goes to the heart of addressing the overrepresentation of these folks, then the legal community and others are solving this problem by doing the least possible amount of work that has to be done. As I said, I am not here to affirm the validity of an entire invalid system.

#MAID #c14: first 100 days?

First 100 days.

In the first 100 days of securing a majority government, the Liberal party decided to take a seemingly different approach to the previous majority Conservative government by posting the briefing documents of the various Ministries online. One such brief document posted online included the Justice of Canada Minister’s Transition Book.

The document identified the government’s priorities in the first 100 days. Hence, the title, “First 100 days.”

And, one such identified priority included developing a “response to the Supreme Court of Canada’s Carter decision (physician-assisted suicide and euthanasia).

While this level of transparency is welcomed in comparison to the previous government, when you actually look at who is (I am assuming) working on the identified priorities, another truth reveals itself.

In 2014, the previous Conservative government developed a response to Bedford, a seminal case which informed Carter. Many people, including those directly impacted by the then-Bill C-36, For the Protections of Communities and Exploitation Persons Act (now law), argued that this Bill was not constitutionally compliant (see Prostitution bill likely unconstitutional MPs told on day 3 of hearings).

Bedford was clear: a law that violates one sex worker’s section 7 Charter right is not valid. Canada’s highest court  specifically outlined that the section 7 analysis is qualitative, not quantitative. So, it is not the amount of people impacted by the law that denotes the harm but it is the effect of the law (Bedford, para 123): sex workers were literally dying and experienced violence because of the effects of criminalization. Over 25,000 pages of evidence documented this harm.

In response to Bedford, the then-Conservative government came back with a law that alleges to protect many victims with the aim of ending prostitution (See “Preamble”). Remember, it is not how many lives that a law can save but the effect of the law on one life; a law that has “a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s 7” (Bedford, para 123).

We see similar premises underlying Bill C-14: how many vulnerable lives can this Bill protect? Still, that is not the test outlined by the Supreme Court of Canada. The section 7 analysis is qualitative not quantitative.

Yet, as everyone is up in arms about the Liberal government’s response to Carter, I am beginning to wonder why everyone expected anything different? Of course, different from the then-Conservative government response where then-Justice Minister Peter Mackay stated at the Standing Committee on Justice and Human Rights (JUST) on July 7, 2014,

Colleagues, I am joined today by Donald Piragoff, senior assistant deputy minister at the Department of Justice, as well as Nathalie Levman, whom I would describe as an expert in this legislation. She has had a great deal of input into both the drafting and the preparation of the legislation that you see before you, Bill C-36 (emphasis added).

Both Mr. Donald Piragoff and Ms. Nathalie Levman, as well as Ms. Joanne Klineberg, prepared the “Response to the Supreme Court of Canada’s Carter decision (Physician-Assisted Suicide and Euthanasia)” in the First 100 Days briefing document. I guess all you have to do is look behind the curtains every once in a while (or, in this case, actually reading what is out there).

curtains.jpg

Further, as Ms. Levman noted at JUST on July 15, 2014,

Well, Bill C-36 posits that the best way to reduce the harms of prostitution is to not engage in it.

If Bill C-36 was a precursor into the government’s response to Carter, then we should have expected a proposed legislative framework that prevented people from accessing medical assistance in dying. Because according to Ms. Levman, the best way to protect the vulnerable is to just prevent them from engaging in the (allegedly) harmful activity in the first place.

Watch who is silent on the issue of the continued criminalization of young people under the guise of protection and safety.

Often when we discuss sex workers’ rights, the focus is always on the human rights of sex workers, who include only adult sex workers. And, to be an adult sex worker depends on the jurisdiction the adult sex worker lives and works in. For instance, in Canada, the Criminal Code dictates the age of consent is 18 years when “the sexual activity ‘exploits’ the young person.” Generally, this means when the sexual activity involves prostitution, then the courts will consider the “nature and the circumstances of the relationship” between the young person and the person. Such nature and circumstances include:

  1. the age of the young person;
  2. the age difference between the person and the young person;
  3. the evolution of the relationship; and
  4. the degree of control or influence by the person over the young person.[1]

But what about the rights of young people in the sex trade, including those who may be 18 years old (or yes, even younger like outlined in the case described below)?

When Amnesty International released its policy calling on governments worldwide to support the human rights of sex workers from a safety perspective informed by evidence coming directly from sex workers’ rights and related organizations, it was and it is clear that the policy fails to address the harms that criminalization of young people, especially through the criminalization of sex work and other related laws.

Throughout its policy, AI continuously emphasizes the term “consensual sex work” as if the phrase “sex work” on its own is non-consensual. AI also highlights the need to continue to fight against child sexual exploitation and human trafficking. AI writes in a post summarizing their policy position,

The policy reinforces Amnesty International’s position that forced labour, child sexual exploitation and human trafficking are abhorrent human rights abuses requiring concerted action and which, under international law, must be criminalized in every country. 

Yet, in 1999, the Calgary Police “apprehended” (para 13) two 17-year-old young women and were “conveyed by police to a ‘protective safehouse.’” (para 14). The young women brought an application to challenge the constitutionality of the Protection of Children Involved in Prostitution Act (now called Protection of Sexually Exploited Children Act). The young women challenged the Act because the Act did not afford children (i.e., the young women) who were “apprehended” (i.e., arrested and criminalized) and “conveyed” (i.e., trafficked by the state) to so-called safehouses procedural protections in accordance with the principles of fundamental justice (paras 43-48).

Specifically, the young women claimed the Act violated their Section 7, 8, 9, 10 and 15 Charter rights. Justice Jordan agreed that the “offending provisions” violated the s 7, 8 and 9 of the Charter and these violations were not saved by section 1 (Oakes analysis).

The Director of Child Welfare did not advance evidence to address section 1 (para 118). In fact, the position advanced by the witness for the Director of Child Welfare was that the “hundreds of apprehensions” is evidence of the Act “achieving its stated goal of protecting children” (para 37). So, more arrests and apprehensions equal GOOD! GREAT!

While this decision was overturned by a higher court and the Alberta government later amended the Act “after significant Charter compliance scrutiny on the part of the government”, we can learn a lot about the agency of young people who are captured by these laws that criminalize the sex trade in laws existing outside the Criminal Code, especially through these young women’s application to challenge the constitutional of said Act. We can also learn a lot about the explicit goals of similar Acts and evidence to support those goals of these Acts. Does anyone see the parallel in the names of Canada’s recent anti-prostitution provisions, Protection of the Communities and Exploited Persons Act with Protection of Children Involved in Prostitution Act (now called Protection of Sexually Exploited Children Act)?

In the fight to decriminalize sex work, the focus should not be on whether one is adult enough based on some arbitrary number imposed on young people’s lives by the state; rather, the focus should be on the systems and institutions imposed on young people’s lives without consent—like the prison industrial complex and the school-to-prison pipeline.

In Canada, it is clear that the child welfare system is an extension of the prison system in the lives of young people. However, the child welfare system should not be used as a system to remove children from families or communities, where home and community can be defined in a myriad of ways. Because after all, wasn’t that the goal of the residential school system? To remove or displace Indigenous children from their homes and communities in an effort to disrupt and obliterate Indigenous systems of being?

While other people engage in debates on the merits of AI supporting the decriminalization of adult consensual sex work, watch who is silent on the issue of the continued criminalization of young people under the guise of protection and safety.

 

[1] R v Barabash, 2015 SCC 29 at para 36.

un/learning: what #sexwork has taught me

It was a sunny day, and I just finished another year of post-secondary education. I remember his requests: school girl, innocent type look. I didn’t have any “school girl” outfits. So, I wore a baby pink dress. It was satin with flowers on it. It made my chest look great, admittedly.

When he arrived, I had this knot in my stomach. I just knew that something wasn’t going to go as planned. I never took requests, let alone clothing requests for “school girl” look. *vomit* But this time, I was rushed. It was near the end of the month (like I said, just finished another year of post-secondary education). I needed to make rent. I needed to buy food to eat. I didn’t fully screen him. He tried to contact me before, several times and under different email addresses. Those other times? I cross referenced his  number on bad date lists; I declined his request for a time range I didn’t allow or advertise;  and I learned how to check IP addresses–his was always the same request, similarly structured email and eventually once I knew how to check, the same IP address (he eventually caught on and would change his numbers he provided as screening information I requested). But this time, this one time, I didn’t have time to check all the multiple bad date lists I had access too and I didn’t have time to follow up on all the other screening tools I used. I need to pay rent and I need to buy food.

He appeared from around the corner of the building, which was the same building I lived in. It is a privilege to be able to afford a separate living space and a work space. I had to be extra careful about who I invited into my space. Literally, my only space.

I greeted him at the front door since the front door was always locked and I preferred to leave it that way. He smiled, put his arm around my waist, and then he kissed me. My stomach did flips. The blood rushed to my head and I began to feel anxious about where this date would go.

Everything I know about in life, I know from sex work. The good, the bad, the ugly. And this date, it was most certainly bad and ugly. Fortunately, a “bad” date has only happened a few times. Though there are still some risks that I worry about to this day from my experiences in sex work, it is always this one experience I am reminded of when something doesn’t go as planned.

I am working a summer law job. I enjoy it, thoroughly. I am learning a lot… like a lot. But, in the short time I have been there and in all the things I am learning (personally and professionally), I fucked up. I made a mistake and I had to bite the bullet. “I wholly admit to making that mistake.” Now what? What next?

Whenever I make a mistake, including when things don’t go as planned (as I am a planner), I always look back and reflect on what I could have done differently. I ask questions, what did I do wrong? How did I make this mistake? Where can I improve? And, more importantly, what can I do so that the mistake doesn’t happen again?

Time and time again, it is this date, where it didn’t go as planned that I always return to, to answer these questions. It is this process, the process that I used to overcome this mistake during my time in the sex trade, that influences my experiences as someone who is continuously seeking to learn, grow and overcome the mistakes I made. While I learn from my mistakes, it saddens me that it is these experiences that are the ones that remind myself to stay safe, stick to your guns, and listen to you gut. And for any other fellow law student or sex worker (or both), always listen to your gut but don’t beat yourself up just because you didn’t listen that one time. Learn. Grow. Reflect. Love yourself.

The Reports are Clear: The #NordicModel neither ends commercial sex work nor ends exploitation.

This is another part of the same paper in the previous post for our (my partner and I) constitutional litigation class. In this part, we canvassed the history of prostitution law and prostitution law reform in Canada and abroad. 


Placing the History of Prostitution Laws in a Canadian Context

The legislative goal at attempts to eliminate prostitution is not new to Canada and elsewhere. Angela Campbell, in her seminal text, Sister Wives, Surrogates and Sex Workers: Outlaws by Choice?, provides a historical overview of Parliament’s attempts to regulate and eradicate prostitution.[1]

The first prostitution laws in Canada existed under two separate Acts, the Indian Act, 1867 and An Act Respecting Vagrants, 1869.[2]

The provisions under the Indian Act made specific reference to Indian women and the provisions assumed all Indian women were prostitutes or lived in homes where prostitution occurred.[3]

Meanwhile, the Act relating to vagrants captured individuals from poor or low income backgrounds.[4] Then, when Canada enacted its Criminal Code, SC 1892 c 29, the 1892 Criminal Code associated prostitution with vagrancy.

Subsequently, in 1915, policy makers of the day recognized prostitution as an activity with the possibility of eradication in its entirety and began to make several amendments in the following years.[5]

Much like other laws, legislative amendments to the prostitution provisions within the Criminal Code[6] must be placed within a social and political context to understand the intentions of such provisions.

Throughout the years, the amendments to the prostitution provisions have been triggered by social or political movements. For instance, at the beginning of the twentieth century, the social purity movement dominated prostitution law reform.[7]

Then, from the 1950s until the 1970s and following World War II, scholars have documented legislative changes to the prostitution provisions and these changes, while not expressly drawn, can be connected to a growing international concern for human rights

i. Canada’s Commitment to Human Rights and Fundamental Freedoms

Following World War II, in 1945 at the General Assembly, the United Nations Declaration of Human Rights was unanimously adopted.[8] These events influenced Canada to create several special joint committees on human rights and fundamental freedoms.[9] The creation of these committees called for a Bill of Rights or a Statutory Canadian Declaration of Human Rights.

Following these recommendations, Canada enacted the Canadian Bill of Rights, SC 1960, c 44 (“Bill of Rights”) which is a federal statute that only applies to other federal statutes.[10]

After the enactment of the Bill of Rights, feminist legal intervention to the prostitution provisions included removing explicit reference to “women” in its vagrancy sections in 1972.[11] However, these interventions merely broadened who was captured by these provisions by its inclusion of the word “everyone” as opposed to “women”.[12]

Then, by the 1980s, Canada’s commitment to human rights and fundamental freedoms became entrenched by the adoption of its Charter.

The adoption of the Charter was and is related to Canada’s ongoing obligations to human rights and fundamental freedoms.[13] However, just a few years prior in 1978, the SCC released its decision, R v Hutt, [1978] 2 SCR 476 (“Hutt”), and provided a strict definition to what solicitation actually entailed. This decision prompted further prostitution law reform.

ii. From the Charter to R v Hutt: Prostitution Law Reform Following Hutt

In R v Hutt, the SCC held that the definition of solicitation meant something more than just offering sexual services for a price.[14] This strict definition did not translate to any sort of protection for women selling or offering sexual services and the law, at the time, continued to remain silent in its application to clients of sex workers.[15] Still, silence in the law does not mean that its application to clients remained non-existent.

After Hutt, Parliament instructed the Standing Committee on Justice and Legal Affairs to research and report on the solicitation provisions.[16] The report, however, only examined street-level prostitution, it did not examine prostitution that takes place in other contexts (i.e, in residences or establishments), and it only provided recommendations to address street-level prostitution.[17]

Following this report, the Federal Government established a Special Committee on Prostitution and Pornography (“the Special Committee”) and it first convened in 1983 to “study problems associated with pornography and prostitution and to carry out a program of socio-legal research[.]”[18]

The terms of reference that governed the Special Committee included gathering international understanding and experiences in addressing prostitution, as well as seeking public input through written submissions and in-person meetings.[19]

The Special Committee concluded with its publication of its report commonly referred to as The Fraser Report, after its chairperson Paul Fraser, in April 1985.[20]

The findings of the Fraser Report concluded with several recommendations to address the problems associated with prostitution and pornography.[21]

Some of these recommendations include the following:

  1. Consider removing economic and social inequalities which push women into prostitution through increasing support for social programs or social services geared toward current or former prostitutes;
  2. Consider researching prostitution further and consider treating it as a social problem while repealing provisions which do not protect prostitutes;
  3. Consider removing prostitution provisions that target both prostitutes and clients and refrain from treating prostitution as a nuisance-related activity;
  4. Consider permitting prostitutes to work in small groups and,
  5. Consider limiting the prostitution provisions that address exploitative situations to violent or threatening conduct, limiting prosecution to “violent and abusive procurers and pimps”, and establishing special police units to investigate and prosecute such instances.[22]

Aside from the uniqueness of the Special Committee, its findings also introduced the idea that the regulation of prostitution can take place in many forms. For example, under its terms of reference to research international understanding and experiences of regulating prostitution, the Special Committee examined other jurisdictions including the United States, Sweden, New Zealand and other countries.[23]

iii. United States: Legalized Prostitution is a Form of Legal Servitude

There are fifty jurisdictions governing and regulating prostitution with only one jurisdiction permitting legalized prostitution.[24] Policing of prostitution, however, is linked to social or community suffering.[25]

The jurisdiction permitting legalized prostitution is in the state of Nevada, with various counties permitting legalized prostitution in brothels or through local options established by those counties.[26]

While a layperson may believe legalized prostitution as a viable option to regulating and policing prostitution, the Fraser report found that various groups and sex workers prefer decriminalization over legalization because “[legalization] approaches a form of legal servitude.”

Despite slavery being a very real and valid concern, there are issues with conflating slavery and prostitution or prostitution-related activities. Primarily, these sorts of conflations between prostitution and slavery ignore the history of slavery in a Canadian context.

Further, when slavery is placed in a Canadian context with a Canadian definition of slavery, the notion that criminalizing prostitution as a means to end slavery fall apart.

In her book examining the history of slavery in Canada, Afua Cooper provides a slavery of definition in a Canadian context:

A useful definition of slavery is the robbery of one’s freedom and labour by another, usually a more powerful person. Violence and coercion are used to carry out the theft and to keep the slave captive in the condition of bondage and servitude. This definition applies to slavery in Canada. Laws were enacted and institutions created to rob persons of their freedom and labour and keep them in perpetual servitude. In the earliest era of colonial rule in Canada, both Aboriginal people and Africans and their descendants were enslaved (Aboriginal slaves were colloquially termed ‘Panis’). From 1428 to 1833, slavery was a legal and acceptable institution in both French and British Canada was vigorously practised (emphasis added).[27]

If the above definition is applied in a Canadian context, while assuming prostitution is a form of labour as it is in the sex workers’ rights movement, then enacting laws that prohibit prostitution is a robbery of one’s labour and subsequently, one’s freedom.

Even with the issues of conflating prostitution with slavery, one must never forget the history of slavery in a Canadian context.

iv. Sweden: Ending Exploitation and Fixing a Social Problem

Sweden sees the need to criminalize prostitution as a means to end exploitation and sees prostitution as a social problem.[28] While the Fraser report found that Sweden’s laws were restricted to exploitative situations, the Fraser Report did not distinguish what was exploitative and what was not exploitative.[29]

The Swedish government established several committees throughout the years and from these committees, the Swedish government passed laws to prevent prostitution.[30] The Swedish government also established education campaigns to “increase the awareness of both potential customers and young girls of the undesirability of encouraging or engaging in prostitution.”[31] These campaigns are born out of these committees’ suggestions, along with legislative recommendations.

Notably, the Committee on Sexual Offences, primarily made up of feminists in Sweden, did not recommend strict laws against customers. Laws against customers, the Committee found, tend “to drive prostitution underground” and further “hamper” helping prostitutes.[32] Again, one must be cautious what “help” actually entails for sex workers, since the Fraser Report did not define what these Committees meant by help.

When the previous Conservative government introduced the prostitution provisions in 2014, the government often referred to PCEPA as the Nordic Model, or a made-in-Canada Nordic Model.[33]

The Nordic Model originated from Sweden in 1999.[34] This law claims to criminalize only the buyers and claims to reduce prostitution.[35] However, much of these claims have been rejected through government reports or academic research.[36]

Further, Sweden passed the 1999 law without consultation with sex workers.[37] Sweden did not have valid numbers on prostitution prior to the legislative changes and sex workers are still criminalized, regardless of where they work (i.e., whether they work indoors or outdoors).[38]

The prostitution laws in Sweden considers all men who take part in sex industry are aggressors. The law assumes all women to be victims of “male violence and patriarchal oppression.”[39]

The prostitution laws in Sweden, also criminalizes promotion of sex work.[40] The prostitution laws limit sex workers to use indoor premises.[41] Sex workers can be evicted for engaging in sex work and if they are not evicted, renters run a risk of being charged for promoting sex work.[42] As a result, many renters do not rent a premises to sex workers due to fear and risk of criminal prosecution.[43]

Thus, sex workers who own a property, where they can safely engage in sex work, have two choices: either live with their loved ones or use the premises for their job.[44]  The Nordic Model makes it impossible for them to do both. Sex workers loved ones could be arrested for promotion of sex work under current Swedish law, if the worker engages in selling her sexual services.[45] Thus, the law does not leave an option for the sex workers to establish families and pursue their career in safe manner.

v. New Zealand: Decriminalization to Prevent Violence and Exploitation

Historically, New Zealand adopted a similar approach to regulating prostitution as in Canada.[46]

But in 2003, New Zealand is a jurisdiction, along with New South Wales in Australia[47], that has decriminalized sex work through prostitution law reform.[48]

The intent of the Prostitution Reform Act, 2003 includes the following:

The purpose of this Act is to [decriminalize] prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that—

(a)
safeguards the human rights of sex workers and protects them from exploitation;

(b)
promotes the welfare and occupational health and safety of sex workers;

(c)
is conducive to public health;

(d)
prohibits the use in prostitution of persons under 18 years of age;

(e)
[and] implements certain other related reforms.[49]

 

Claims that prostitution will lead to an increase in human trafficking or sexual exploitation are often used to support criminalization of sex work. However, decriminalization simply means removing all the laws that criminalize prostitution, turning the law’s focus to more specific offences, like assault, kidnapping and other specific offences. Further, the claims that decriminalization would increase human trafficking ignore the context of human trafficking including the history of criminalizing Brown, Black and Indigenous peoples’ movements, bodies and sexualities through prostitution laws.

International Growing Concern for Human Trafficking

Support for the PCEPA is found within the international growing concern for human trafficking at domestic and international levels. Canada also has an international obligation to uphold its commitment as a signatory to protocols that fight against human trafficking.[50]

Recently, Bill C-452 received Royal Assent in June 2015.[51] This bill concerns harsher penalties for individuals charged with human trafficking and exploitation related offences.[52]

The SCC also released a decision in 2015 concerning the definition of exploitation and youth in the sex trade. This case delineates a non-exhaustive list of factors for trial judges to consider when deciding on sexual exploitation cases.[53] This list is embedded in the Criminal Code under section 153.

The SCC further states that even if a young person consents to a sexual activity, the Court “must be alive to Parliament’s direction in s. 153 that consent cannot be taken merely at face value where a young person is concerned.”[54] The SCC does not define “young person.”

The Royal Canadian Mounted Police has also produced multiple report on human trafficking, calling for increased support for policing.[55]

The above concerns relating to the international growing concern for human trafficking and sexual exploitation assumes all prostitution to be exploitative since all prostitution is human trafficking or leads to human trafficking.

Increasing International Support for the Nordic Model

In the past 15 years, Nordic countries have brought major changes to their prostitution laws.

Many lawmakers see the Nordic Model as empowering women. It is often described as a model that recognizes the inherent “definition of prostitution as a form of male violence against women[.]”[56]

The Swedish government has concluded that since the implementation of the Nordic Model, the number of women in visible prostitution has decreased.[57] However, this conclusion needs to be viewed with caution because the effects of the law is not entirely clear. May-Len Skilbrei and Charlotta Holmström state, “men involved in prostitution, women in indoor venues, and those selling sex outside the larger cities are therefore excluded from the scope of the report.”[58] It is hard to draw conclusions that the laws have reduced prostitution when many sex workers have moved off the streets and utilized the internet or moved indoors.

The French legislature implemented prostitution laws that resembled the Swedish model. The law was adopted with a vision to punish men who objectify women. In other words, similar to the Sweden, France adopted a legislation that prosecutes the buyers of sexual services instead of prostitutes.[59] The effects of the new legislation is unknown in France, as it has only been recently introduced. Many critics argue that sex workers will be further marginalized, like they have been in Sweden.[60]

In Ireland, Laura Lee, a sex worker, has challenged similar prostitution laws which alleged to target the buyer instead of the seller.[61] Laura Lee argues that the Nordic Model increases the vulnerability of sex workers to violence.[62] Lee claims that the law makes it difficult for the sex workers to screen customers because customers are refusing to use the online screening process.[63] As Laura Lee states “It is very, very useful tool to have [online screening] but in a further criminalized state it can be sadly abandoned, I am afraid”.[64]

Studies have also demonstrated that sex work has increased by eighty percent in the Irish Republic since the ban was introduced by the Northern Ireland.[65] This data demonstrates the reality of the Nordic Model: It does not abolish prostitution. Instead, the Nordic approach pushes prostitution to a different location or a different method (i.e., from outdoors to online).

The Problems with the Nordic Model

Given that no legal changes, in and of themselves, can eliminate prostitution, decriminalization seems to afford the fairest, least costly and most effective choice, and to offer the most opportunity for options for [sex workers].

Prostitution, like water, can be dammed in one place, but will simply find another outlet. Prostitution may change its form but it will not disappear so long as the society creates and fosters conditions where it must prevail. – National Action Committee on the Status of Women, Toronto

The above quote taken from the Fraser Report outlines exactly what data demonstrates as indicated in the previous section, outlining the reality of the Nordic Model.

Accordingly, there has been an overwhelming support to challenge the new prostitution laws in Canada. In fact, the Nordic Model, which influence Canada’s response to Bedford, is undergoing legal scrutiny as well.

Sandra Chu and Rebecca Glass argue that sex work in Sweden has not been reduced; rather, the Nordic Model prostitution laws have forced sex workers to work in illegal brothels or work alone in indoor locations.[66]

Chu and Glass found that, in Sweden, the Nordic Model negatively impacted sex workers whether they be indoor or outdoor sex worker.[67] It has increased violence against sex workers because clients negotiations are “done rapidly and in more secluded locales.”[68]

In addition, Chu and Glass indicate that the Nordic Model does not help sex workers to trust the authorities; rather, sex workers feel “hunted”.[69] Subsequently, sex workers are subjected to intensive search and questioning if found with their client.[70]

The reports are clear: The Nordic Model neither ends commercial sex work nor ends exploitation. It also does not help protect women or sex workers. Instead, the Nordic Model denies sex workers the right to control their working conditions and puts limits on sex workers’ safety. Through decriminalizing sex work and protecting sex workers’ Charter rights, Canada would continue to remain committed to its human rights obligations, as well as fundamental freedoms.

 

 

 

[1] Angela Campbell, Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? (Surrey, England: Ashgate Publishing Limited, 2013) at 143-193 [Campbell].

[2]Yvonne Boyer, “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis et al, Restoring the Balance: First Nations Women, Community, and Culture, (Winnipeg: University of Manitoba Press, 2009) 69 at 77; Ibid.

[3] Yvonne Boyer, “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis et al, Restoring the Balance: First Nations Women, Community, and Culture, (Winnipeg: University of Manitoba Press, 2009) 69 at 77; An Act to amend “The Indian Act, 1876”, c 34, (1st Sess, 4th Parl) (assented to 15 May 1879); An Act further to amend “The Indian Act, 1880”, c 27, (2nd Sess, 5th Parl) (assented to 19 April 1884).

[4] Campbell, supra note 1 at 143-193.

[5] Campbell, supra note 1 at 157.

[6] Prostitution provisions exist in other legislations; however, this paper deals specifically with the Criminal Code provisions.

[7] See also John Lowman, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution” (2011) Beijing Law Review 2 at 34 <http://www.SciRP.org/journal/blr> [Lowman].

[8] A. Cairns, “Charter Versus Federalism: The Dilemmas of Constitutional Reform” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 724.

[9] P. Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 725-728.

[10] The Honourable Pierre Elliott Truduea, Minister of Justice, “A Canadian Charter of Human Rights, January 1968” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 719-722; Canadian Bill of Rights, SC 1960, c-44.

[11] Lowman, supra note 7 at 36.

[12] Ibid at 36.

[13] See Lowman, supra note 7.

[14] Lowman, supra note 7 at 36; Campbell, supra note 1 at 160.

[15] Campbell, supra note 1 at 160.

[16] Lowman, supra note 7 at 36.

[17] Lowman, supra note 7 at 36-37.

[18] Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol 2 (Canada: Ministers of Supply and Services Canada 1985) at 683-687 [The Fraser Report].

[19] Ibid.

[20] James R Robertson, Prostitution, Revised 19 September 2003, online: <http://publications.gc.ca/Collection-R/LoPBdP/CIR/822-e.htm#cthefrasertxt>.

[21] The Fraser Report, supra note 18 at 683-687. Note: Though the recommendations include both prostitution and pornography with specific recommendations directed towards protecting children, this paper only considers recommendations relating to prostitution.

[22] The Fraser Report, supra note 18 at 683-684.

[23] The Fraser Report also examined Australia, England and Wales, France, West Germany, Denmark and the Netherlands. For purposes of this paper, we will only examine Sweden and New Zealand, as these are the two most commonly referred to models by prohibitions and sex workers’ rights activists (respectively).

[24] The Fraser Report, supra note 18 at 473-477.

[25] Ibid at 475.

[26] Ibid at 475.

[27] Afua Cooper, The Hanging of Angélique (Toronto: HarperCollins Publishers Ltd) at 70.

[28] The Fraser Report, supra note 18 at 502.

[29] Ibid at 502-504.

[30] Ibid at 502-504.

[31] Ibid at 504.

[32] Ibid at 504.

[33] Daniel Schwartz, “Sex Workers Like New Zealand law, not Canada’s new ‘Nordic model’ for prostitution”, CBC News (5 June 2014), online: CBC News <http://www.cbc.ca/news/politics/sex-workers-like-new-zealand-law-not-canada-s-new-nordic-model-for-prostitution-1.2665431>.

[34] Lowman, supra note 7 at 33.

[35] Vice, “The New Era of Canadian Sex Work” (2015), online: Vice <http://www.vice.com/en_ca/video/the-new-era-of-canadian-sex-work> at 00h:06m:22s.

[36] Canadian Alliance For Sex Work Law Reform, What Canada Can Learn from Sweden’s Laws that Criminalize the Purchase of Sexual Services (2014), online: <https://drive.google.com/file/d/0B3mqMOhRg5FeZ2R5U3ItUjJ5T3c/view> [Canadian Alliance].

[37] Sandra Ka Hon Chu and Rebecca Glass, “Sex Work Law Reform in Canada: Considering Problems with the Nordic Model” (2013) 51:1 Alta L Review 101 at 104 [Chu and Glass].

[38] Canadian Alliance For Sex Work Law Reform, What Canada Can Learn from Sweden’s Laws that Criminalize the Purchase of Sexual Services (2014), online: <https://drive.google.com/file/d/0B3mqMOhRg5FeZ2R5U3ItUjJ5T3c/view>.

[39] Chu and Glass, supra note 37 at 103; See also Lowman, supra note 7 at 33.

[40] Chu and Glass, supra note 37 at 113-114.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] The Fraser Report, supra note 18 at 490.

[47] Scarlett Alliance, State by State Laws in Australia, online: <http://www.scarletalliance.org.au/laws/>.

[48] Prostitution Reform Act 2003 (NZ), 2003. Available online: http://www.legislation.govt.nz/act/public/2003/0028/latest/whole.html#DLM197821.

[49] Ibid at s 3. Available online: http://www.legislation.govt.nz/act/public/2003/0028/latest/DLM197821.html.

[50] Canada, Public Safety Canada (2012), “National Plan to Combat Human Trafficking”, online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/index-eng.aspx#toc-02> at 1.

[51] Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), 2nd Sess, 41st Parl, 2015 (assented to 18 June 2015).

[52] Ibid.

[53] R v Barabash, 2015 SCC 29 at para 36, [2015] 2 SCR 522 [Barabash].

[54] Ibid at para 42.

[55] See especially Royal Canadian Mounted Police, “Domestic Human Trafficking for Sexual Exploitation in Canada” (Ottawa: RCMP, October 2013).

[56] May-Len Skilbrei and Charlotta Holmström, “The ‘Nordic Model’ of prostitution law is a myth”, The Conversation (16 December 2013), online: The Conversation <http://theconversation.com/the-nordic-model-of-prostitution-law-is-a-myth-21351>.

[57] Ibid.

[58] Ibid.

[59] Hannah Osborne, “Nordic Model of Prostitution Approved by European Parliament” in International Business Times (26 February 2014), online: International Business Times <http://www.ibtimes.co.uk/nordic-model-prostitution-approved-by-european-parliament-1438009>.

[60]Alexandra Topping, Northern Ireland prostitution ban divides opinion” in The Guardian (23 October 2014), online: <http://www.theguardian.com/society/2014/oct/23/northern-ireland-prostitution-ban-reaction>.

[61] UTV Ireland Staff, “Sex Workers in Ireland ‘up 80%’ since NI ban” in UTV Ireland (9 March 2016), online: <http://utv.ie/News/2016/03/09/Sex-workers-in-Ireland-up-80-since-NI-ban-55470>.

[62] Ibid.

[63] Ibid.

[64] “80% boost in Irish Republic sex workers after NI ban, says ex-prostitute”, News Letter (9 March 2016), online: <http://www.newsletter.co.uk/news/northern-ireland-news/80-boost-in-irish-republic-sex-workers-after-ni-ban-says-ex-prostitute-1-7264303>.

[65] Ibid.

[66] Chu and Glass, supra note 37 at 105.

[67] Ibid.

[68] Ibid at 106.

[69] Ibid.

[70] Ibid at 105-107.

#Bedford v #c36: the unconstitutionality of the #PCEPA #sexwork

This is a part of a paper that my partner, Ferishta Saboor, and I submitted for our class, Constitutional Litigation (which is by far the most important and useful class I have ever taken in law school). For the paper, we had to craft a constitutional challenge, including the parties, strategy, evidence, etc. Ferishta created the table and it is an excellent table (analysis by both of us)! For sake of this post, I added some edits to help provide clarification on some points which were not clear without the context of the entire paper. Please contact me (via the contact tab) if you would like to use the information or cite the information for a project or paper. 

The SCC held that the three impugned provisions – common bawdy house, living of the avails of prostitution, and communicating in public for the purposes of prostitution – violate section 7 of the Charter and this violation is not in accordance with the principles of fundamental justice (PFJ).

The SCC indicated that these provisions “do not merely impose conditions on how prostitutes operate.  They go a critical step further, by imposing dangerous conditions on prostitution (emphasis in original).”[1]

Despite this recent ruling, the then-Conservative government proposed and passed a law that does exactly what the SCC has held to be unconstitutional.

In order to demonstrate how the new prostitution provisions violate section 7 of the Charter and that these provisions are contrary to Bedford, the following chart is included as a blunt and deliberate delineation of the provisions’ unconstitutionality.

Analysis in Bedford Current Prostitution Laws
[60] The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.

 

Though the prostitution provisions have some exceptions to the material benefit provisions, the provisions assume that people who set up a commercial enterprise to provide screening, transportation or advertising services are exploiting sex workers. In northern or rural regions, many sex workers either have to work alone, work in groups or work for an agency. However, the material benefit provisions assume that anyone, even if they are another sex worker, is exploiting a sex worker. By preventing sex workers from working together, the provisions force sex workers to work alone and thus, impose dangerous conditions on sex workers.
[61] It is not an offence to sell sex for money. The bawdy­house provisions, however, make it an offence to do so in any “place” that is “kept or occupied” or “resorted to” for the purpose of prostitu­tion […]. The reach of these provisions is broad.  The new provisions define prostitution as a harm to individuals and society.[2] Though the new provisions do not criminalize keeping a bawdy house for the purposes of prostitution, the provisions still criminalize keeping a bawdy house for indecent purposes, where indecent is defined as a harm to individual or society.[3] If prostitution is defined as harmful to society, then the definition of a bawdy house assumes an indecent house is kept for the purposes of prostitution where an indecent house and prostitution are both defined as harmful to society and individuals. Thus, the provisions force sex workers from setting up indoors and implementing indoor safeguards by assuming they are the source of the harm to society.
[64] First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards. This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assis­tants, bodyguards and audio room monitoring, which would reduce risks.

 

Same as above.
[67] Hiring drivers, receptionists, and body­ guards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the per­son and engages s. 7. The Material Benefit Provisions prevent sex workers from creating safer work conditions including sharing services, like screening, transportation or advertising services either explicitly or implicitly under a commercial enterprise. The Material Benefit Provisions, despite the exceptions, assume all interactions with sex workers, regardless of the nature of the relationship, are exploitative since the law assumes prostitution to be inherently exploitative.[4] By merely sharing in the benefit from the consideration for sexual services, anyone who has a relationship (professional or personal) with a sex worker is assumed to be exploiting the sex worker. Further, the law also prohibits other third party safety enhancing measures, including online advertising (which is a screening service).
[72] By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face. The Advertising Provision prevents sex workers from accessing safer clients through screening services by forcing sex workers to accept dangerous clients under haste in an attempt to avoid arrest or detention. Other screening services include online advertising and prohibiting a sex worker from taking steps to avoid a dangerous client triggers the section 7 Charter violation.

 

Principles of Fundamental Justice

Bedford Current Prostitution Laws
Bawdy House Provisions

[136] Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.

 

A law that prohibits sex workers from taking steps to ensure they avoid dangerous or violent clients has lost sight of its purpose.
Living on the Avails

[142] The question here is whether the law nevertheless goes too far and thus deprives the applicants of their security of the person in a manner unconnected to the law’s objective. The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad.

The Trafficking Provisions assume that all relationships between a sex worker and others, especially those who receive a material benefit from a sex worker’s services, are exploitative and force sex workers to work alone especially in northern or rural areas; thus, these provisions prevent sex workers from assessing potential dangerous clients by prohibiting sharing of information amongst each other or forcing sex workers to work in areas away from police detection. Preventing sex workers from taking steps to avoid potential dangerous clients is the same situation that Chief Justice outlined as violating a sex workers’ section 7 Charter rights.
Communication Provisions

[158] The assessment is qualitative, not quantitative. If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.

 If the laws prevent only one sex worker from taking steps to implementing safety measures or working with others, including other sex workers, then the harms of the law are established. A law that seeks to save or protect many victims[5] cannot outweigh the effect of criminalization sex work: violation of a sex worker’s section 7 Charter rights. The violation of a sex worker’s section 7 Charter rights is one sex worker too many. 

Section 1

Bedford Current Prostitution Laws
[162] In particular, the Attorneys General attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships, which can be   difficult to identify. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non­ exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the ­final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relation­ships. The law assumes all relationships between sex workers and others parties are exploitative. For instance, while the provisions allow exceptions, these exceptions do not include sex workers who may receive material benefit from other sex workers’ sexual services or do not include commercial enterprises, whether they are run by a sex worker or someone else providing protective services like security in a strip club.[6] Also, the law assumes sex work to be inherently exploitative, including any relationship a sex worker has with other sex workers and non-sex workers, and consequently, sex work exploits sex workers; the law attempts to define all sex work as exploitation. These laws by their very intent and purpose are too broad. When the law is too broad and captures non-exploitative relationships and situations, it is not minimally impairing.

 

[1] Canada (AG) v Bedford, 2013 SCC 72 at para 60.

[2] Bill C-36, 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, 2nd Sess, 41st Parl, 2014, cl 49 (assented to 6 November 2015) [Bill C-36] at “Preamble”.

[3] Lyne Casavant and Dominique Valiquet, Legal and Social Affairs Division, Library of Parliament, “Legislative Summary of Bill C-36: 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“, Publication Number 41-2-C36-E (18 July 2014), online: Library of Parliament <http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=C36&Mode=1&Parl=41&Ses=2&source=library_prb#a2>.

[4] See Bill C-36, “Preamble”.

[5] Hon Peter MacKay, June 4, 2014, https://openparliament.ca/debates/2014/6/11/peter-mackay-4/.

[6] Canada, Department of Justice, Technical Paper: Bill C-36, Protection of Communities and Exploited Person Act, March 2015 update (Ottawa: Department of Justice, 2015), online: Department of Justice <http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html>. See also, Hon Peter MacKay, June 4, 2014, https://openparliament.ca/debates/2014/6/11/peter-mackay-4/.

the thing about #sexwork

So, here is the thing about sex work: it takes place and happens in many ways. Sometimes people trade sex for straight up cash. Other times, people might trade for another item or resource. This is also the beauty of sex work: it is diverse and unique.

Ever since entering law school, I met many people who understood that people needed to be given the tools to sell/trade sex safely (whatever safe means to that person selling/trading sex). I know, unfortunately, that there is also a huge resistance to even allow people who sell/trade sex on their own terms or give them the tools and resources to do sex work safely. For some, safe(r) just does not exist.

While it may appear that this post is about how to make sex work safe(r), I really want to write about the skills that sex work taught me. For instance, I am really trying to get into the groove of marketing my own skills as a non-sex worker. At first, I felt lost and unsure about where to start. Yet, I only had to look into my past experiences on website development, copywriting, or client development—to name a few.

During my time as an independent sex worker, I learned many skills relating to these few named experiences. I learned how to target my ads/website to a specific type of client (a client I knew I would have a good working and lasting relationship). From these client interactions, I learned how to read what type of client was a good fit for my work persona. I also had to learn how to read and check in during our more intimate interactions to ensure all parties left feeling satisfied (make of that what you will). As an independent sex worker, it is important to maintain good working relationships with other sex workers. Sex workers, especially those who sell or trade the same sexual services, build intricate and detailed safety networks—these networks are literally a lifeline.

The list of the skills I have developed could go on… conflict resolution, negotiation, client management, business management, researching (yes, researching), communication, creative thinking.

One day, my dream is for sex workers to live and work without fear of criminalization, violence and harassment. Part of this dream is realizing the many skills and experiences that demonstrates sex workers’ bad ass resiliency.

Don’t leave your day job Peter MacKay #cdnpoli

Well, hello Mr. Peter MacKay. It’s been a while since you decided to show up in the media. I read your special post in the National Post, “Respect the rule of law.” Funny, the rule of law, means that no one is above the law—yes, even politicians or prime ministers. So, I think you use that term but you don’t know what it means.

word

Yes, Canada’s Supreme Court struck down criminal laws enacted by a parliament, though arguably, neither democratically elected nor accountable. While your party may have enacted laws and engaged in law reform, these law reforms were not meant to “re-balance” our justice system. And if you want to talk about the “groundbreaking [sic] new Victims Bill of Rights” or the “youth and child advocacy centres”, the Supreme Court touched neither the Victim Bill of Rights nor these centres.

Over the last decade, the only institution that seemed at odds with the Supreme Court was (oddly) your party, the Conservative Party of Canada. Also, nobody enforces the rule of law; it exists independently of all laws—everyone benefits when we actually use this concept correctly (#sorrynotsorry). And, ultimately, the only demand for greater accountability seemed to remedy itself once your party failed to capture another majority at the last election. I would say that is demonstration of the public demand for greater accountability in its clearest form.

While you quote part of the dissent in your special post, you quote the dissent out of context. The dissenting judges cite Nasogaluak when talking about mandatory minimums as a “forceful expression of governmental policy in the area of criminal law” (in R v Lloyd at para 60). That is the particular citation you quote.

In that citation in R v Lloyd, the dissenting Supreme Court Justices refer to a specific and unique framework and when applied, includes some very serious considerations. For instance, as held in R v Nasogaluak, courts must consider any instance of police violence in reducing a sentence for a mandatory minimum (in Nasogaluak at para 53). In that same decision, Canada’s highest court also held that a sentence can be reduced because of state misconduct even when there is no Charter breach (ibid).

And when you quote, “Parliament is owed substantial defence in crafting mandatory minimum sentences”, you must have seen that the dissent was referring to a decision which prohibited a man from driving for three months—in an effort to protect the vulnerable people who drive our dangerous highways and roads every single day (See R v Goltz, [1991] 3 SCR 485). That same court in the Goltz decision held when a bad driver scores more points, it’s not good and not having bad drivers on the road is good. I mean, don’t you want to protect the poor innocent children who are at-risk of bad drivers?

Also, you decide to highlight that only in “rare and unique circumstances” a mandatory minimum will violate the Charter. Yes, it is true that the dissenting judges state something similar. However, they are referring to a decision which states, “It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter” (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417). This test, however, was for reviewing sentences in general. Also, the Steele decision involved a dangerous offender designation. Something quite different than the factual circumstances in R v Lloyd.

Strangely, however, you also quote Supreme Court Justice Moldaver, which looks like a quote from a decision but it’s not. Based on the absence of a 2011 archives for Judicial appointments, I am assuming from media articles (like this one here) that this quote comes from such committees.

But, what is this “lost in the activist celebration in some circles are the basic facts”?! When you don’t refer to any “basic” facts?! In fact, you draw an illogical conclusion. You state, “Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting.” I would suggest that recidivism is on the rise because the lack of social supports in communities to help rehabilitate prisoners—an objective of the Criminal Code. And the reason victims don’t report is largely because victims don’t trust the current system to provide justice. Despite your insistence on focusing on the facts, you then make reference to the Truth in Sentencing reforms in 2009. These reforms could definitely be linked to those increasing recidivism rates you refer to in your previous paragraph.

Still, while calling for protection of the vulnerable is a laudable goal, to say that the court is encroaching over Parliament’s power to enact legislation is a misuse of the rule of law. A democratically elected and accountable Parliament should not enact laws that violate our Charter rights and civil liberties and by appealing to emotion (aka protecting the vulnerable), it is nothing more than a weak argument. Then again, with your track record as former Justice Minister, I guess this is what we should expect.

law-making: on our bodies; with our bodies.

The last time I talked about some of Canada’s first bawdy house laws and laws targeting Indigenous women’s sexualities and bodies coming from the Indian Act was for a class this past term. This piece of history is rarely talked about or even acknowledge when there is a full canvassing of prostitution laws in Canada (See Angela Campbell’s text on surrogacy, sister wives and sex workers). I sometimes get tired of writing about this history and I sometimes get tired of having to even mention it. You would think that people who are so adamant about getting rid of the Indian Act would mention that history too? Or, at least, you would think people who are so insistent on abolishing prostitution that they would look to the history of criminalizing Indigenous women’s sexualities and bodies, especially when it comes to the intent of the Indian Act: get rid of the Indian problem. I guess, criminalizing Indigenous women’s bodies and sexualities to get rid of something, anything, including Indigenous women is part of this colonial project, goal…get rid of the Indian problem.

The first time I read about the history of Canada’s first prostitution provisions, however, was through secondary research. I first read about it in Yvonne Boyer’s essay, “First Nations Women’s Contributions to Culture and Community through Canadian Law.” So, when I first read these provisions in their corresponding amending Acts, I didn’t know what to expect.

Amending Acts are Acts created by a government to amend, well, other Acts. So, each time there was an amendment made to the Indian Act, you can find (or at least should) find an Amending Act. I went searching for these Amending Acts a few months ago.

The first time I read these provisions in context, I grew sick to my stomach. The room I stood in, the law school library, started spinning. I reminded myself, “Naomi keep breathing.” I tapped my fingers to bring myself back into the room. It is something my counsellor also taught me—tapping. I am not sure what it is its technical term but it helps…sometimes. I don’t know where I had to be that day but all I can remember after reading the provisions in context is going home to sleep. Disassociation. I disassociated that day. I do this a lot including a lot more while in law school. The violence that law and law school does.

Patricia Monture writes about the erasure of Indigenous women in feminism in her paper titled, “The Violence We Women Do: A First Nations View.” She writes about how (white/mainstream) feminists need to talk about race if they want to truly end violence against women, including Indigenous women.

I see, in discussions surrounding prostitution and Indigenous women in the sex trade, that organizations and others are constantly calling for Indigenous women to be included in these discussions—these discussions referring to ending violence against women, and in particular ending violence against Indigenous women, girls and two-spirit folks. Yet, I don’t think that is the problem: we have always been focused on Indigenous women. Rather, there is this problem of ignoring the law, the history of the law and how the laws have always targeted Indigenous women, their sexualities and their bodies. We can see this same extension of targeting Indigenous, poor and racialized sexualities and bodies (and not just Indigenous women) through the enactment of Bill C-36, Protection of Communities and Exploited Persons Act.

Why do we ignore the history of these laws when calling an end to violence against Indigenous women, girls and two spirit folks? Why do we ignore how these laws specifically targeted these same groups of people? It is not Indigenous women, girls or two spirit folks that are vulnerable or at-risk; rather, it is the law that makes them at-risk and vulnerable to the violence, especially to the violence that these laws permit to be carried on Indigenous folks’ bodies. The reality is that these laws are made with our bodies (at the expense of one’s safety and well-being, of course) and on our bodies—the colonial project. And, before it is too late, space needs to be created to discuss the criminalization of Indigenous women’s bodies and sexualities as inherently tied to this ongoing goal, get rid of the Indian problem.

Dear 13 year-old-self

Dear 13-year-old self,

You will think about that day, the one Father’s day, you wanted to take your life away. You will think about it a lot. You remember the sun, the freshly green cut grass. But you won’t remember what made you feel that way. You will remember being called stupid by your elementary school teachers. Perhaps it was that. Still, it doesn’t matter because you will be thankful your sister walked in that day and asked you what is the matter. You won’t remember what you said to her but you will remember being in emergency. Then, the ICU for many days. You won’t remember the day you left the hospital or how many other times you tried after that day. But it won’t matter though—you are here today.
me1

You will go on to high school, away from all your friends. You will feel alone and isolated but you will make new friends. Your life will change drastically after the car accident: you lost friends and gained new ones; you will be in that small room receiving support from the specially trained teachers; and you will graduate with honours (even though the doctors said you wouldn’t). Your family won’t know how to live with the “new” you—you look the same but you don’t feel the same. And like that one Father’s day, you won’t remember what happened that day you were hit by a car. Were you walking? Running? Biking? You remember, however, the sun. The same sun you remember the first time you almost killed yourself.

The sun, the earth and the moon will always be there in your memory and your present.

The life you go on to live is shamed by many. You will have a voice telling you that there is nothing wrong with you… it is society. Always listen to that voice. And always nourish that inner voice.
me2

The people you meet, doing the work you do will inspire you. The two strong Black women who you meet at both clubs you worked at, who taught you some of the best tricks in the book. You will struggle, though. You will continue to feel isolated and alone, in a brand new city with no family. But you will make new friends. A lot of friends, who come and go. Friends that you will continue to think about long after you left, especially your best friend who killed herself.

Still, the sun, the earth and the moon will always be with you.

You go on to university. It’s a very weird, strange place. And, you will make new friends. These friends teach you many things about life. You continue to do the work that you do and you continue to feel shame for some of the things you do because of what society tells you … about the things you do. Then, you meet other women who do the same work that you do and you realize that these women, having just met them, will continue to inspire you. They will inspire you to write and share your story too.

People will share with you in private that they share a similar story as you. You will thank them for sharing their story with you. You will carry these stories and honour these stories.
me4
You worry a lot about what the future has in store for you. You hate that feeling of unpredictability. If there is one thing I could tell you then what I know now: embrace that uncertainty and unpredictability! It makes life beautiful. It makes you beautiful. Forget about not knowing…just go with the flow.

And always remember, the sun, the earth, and the moon will always be with you.