Changing sex-trade laws
The Supreme Court’s case on brothels exposes different views
OTTAWA — The landmark Supreme Court of Canada case that could see brothels legalized has united a wide spectrum of women’s groups arguing that current rules make sex work unsafe.
But it’s also exposing differing points of view on how Canadian law should treat prostitution, particularly regarding indigenous women.
Aboriginal women are overrepresented in the sex trade; in some cities, it’s estimated that up to 70 per cent of women in street prostitution are aboriginal. They also make up about a third of Canada’s female prison population.
The case the Supreme Court heard earlier this month has shown divisions between the high-class sex workers who do the job because they choose to, and the front-line groups representing women — often aboriginal — who are forced into prostitution, often from a very young age and due to addiction, poverty and abuse.
That said, even indigenous groups have differing perspectives on how exactly the laws should be changed.
The Native Women’s Association of Canada (NWAC), for example, says legalizing brothels won’t help, because aboriginal women will remain selected for the most exploitative form of prostitution.
“I don’t think indigenous women will be more safe. I think it’s going to be the opposite,” NWAC president Michele Audette told Postmedia News.
If brothels are legalized, Audette said, aboriginal women will be pushed to “last on the list,” and end up on the black market where they will be more vulnerable than ever.
“I have big doubts that indigenous women will still be protected,” she said.
Prostitution itself isn’t illegal in Canada, but the three laws at play in the case criminalize many activities surrounding it. Sex worker Terri-Jean Bedford and her co-complainants argue that the laws infringe upon the Charter right to security of the person.
The Ontario Court of Appeal issued a mixed ruling last year, striking down the section that prohibits brothels, but upholding a ban on communication for the purposes of prostitution and imposing limits on the section that criminalizes “living off the avails” of prostitution, saying it should only apply “in circumstances of exploitation.”
NWAC intervened in the case as a member of the Women’s Coalition for the Abolition of Prostitution. The group favours the so-called “Nordic model” of prostitution laws: an asymmetrical system in which prostitutes aren’t criminalized, but it’s illegal to be a pimp or customer.
“The effects of residential schools, including poverty, addiction and cycles of violence and abuse, contribute to Aboriginal girls being taken into state care or running away to urban areas, where they are vulnerable to recruitment by pimps,” the coalition said in court documents.
“Consigning Aboriginal women to bear the brunt of meeting male demand for prostitution compounds this inequality.”
Other groups such as Aboriginal Legal Services of Toronto, which intervened on its own, agree with Bedford and company that all three laws, including the law prohibiting communication for the purposes of prostitution, should be struck down.
Emily Hill, a senior staff lawyer with the non-profit legal agency, said the evidence before the court established that the communication between a sex worker and a potential client plays an important role in protecting her safety.
“If you criminalize any part of that conversation, whether you’re going to charge the buyer or the seller, it means it has to happen more furtively,” she said.
“By making those conversations happen on the sidelines, by criminalizing even one part of that conversation, our position is you increase the vulnerabi l ity ( for sex workers).”
And she said that although there are women who won’t be able to access brothels, the option should nonetheless be open to those who can.
While the groups differ slightly on how the laws should change, Hill said, their views are rooted in the same concern for marginalized indigenous women.
And no one is under the illusion that striking down the laws will solve the problem of aboriginal women in the sex trade struggling with poverty, addiction and mental health issues.
“The Supreme Court benefited from having different perspectives speaking for indigenous women,” Hill said. “We have different points of view, but we’re all concerned about the same issues. … We want to work together.”