Over the past few decades Canada has taken many steps to improve the safety and rights of women in this country, such as changing the rape laws to laws against sexual assault, striking down the abortion law, and other amendments to the Criminal Code aimed at increasing protection to women. Yet when it comes to women involved in prostitution, who face the highest amounts of violence and murder compared to any other population of women, the government has not made any strides to improve their safety or increase their rights, even though many studies on violence and prostitution have concluded that Canada’s criminal laws against adult prostitution make it difficult for sex workers to work in safe conditions, implement safety procedures, and seek police assistance when they have been victims of assault.
Although the act of prostitution itself has never been illegal in Canada, many of the activities surrounding prostitution, including those that would make sex work safer, are criminalized. For instance, under the Bawdy House laws, sex workers are prohibited from being able to work in their own controlled environment (such as their home, commercial unit, or brothel) forcing them to have to conduct business inside the home or hotel room (or another location) of the client. The Living on the Avails offence makes it illegal for sex workers to hire any personal security (such as a driver, body guard, or receptionist) as this makes it a crime for sex workers to give any of their earnings made from prostitution to someone else. The communicating law, used in over 90% of prostitution related arrests, prohibits sex workers from negotiating sexual services with a client (or potential client) in a public space, which is any place that the public can view or have access to and includes a bar, street, parking lot, vehicle, or a any place with an open door or window.
On March 21st 2007 lawyer Alan Young, along with plaintiffs Terri Jean Bedford, Amy Lebovich and Valerie Scott, announced the launch of the Safe Haven Initiative, a constitutional court challenge aimed at removing the adult prostitution laws, claiming that not only do the laws against prostitution prevent sex workers from legally being able to work in safe conditions but, they are also a violation of human rights under section 7 of the Charter of Rights and Freedoms by denying sex workers of their “right to liberty and security in a manner that is not in accordance with the principles of fundamental justice”.
The Safe Haven Initiative is not the first time Canada’s prostitution laws have been challenged as being a violation of the Canadian Charter of Rights and Freedoms. In 1990 the Communicating law was contested in the Supreme Court of Canada as an infringement under the Charter’s ‘right to freedom of expression. Although the court ultimately found that the communicating law is indeed an infringement of an individuals right to freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms, the court felt that given the governments objective of eliminating street prostitution and the social nuisance it creates, it was justifiable as a reasonable limit under section 1 of the Charter.
Prior to this court challenge, the federal department of justice appointed a committee in 1987 to evaluate the effect of the communicating law. This committee called the Standing Committee on Justice and the Solicitor General on Section 213 of the Criminal Code (Prostitution-Soliciting), in 1990 and found that communicating law was not meeting its objective of decreasing street based prostitution, and instead moving street based prostitution “from one downtown area to another, thus merely displacing the problem.” Even with their findings the committee did not recommend either removing or amending the law.
In 1992, the government initiated another study, this time to review all of Canada’s legislation, policy and practices concerning prostitution-related activities. The committee traveled all over Canada and spoke to representatives of citizens' groups, community service providers, educators, municipal and provincial officials, women's advocacy groups, aboriginal groups, current and former sex workers and their advocates, child welfare and health workers, police officers and Crown Counsel, and while the citizens' groups and police demanded increased enforcement of the current legislation and more legislation in certain areas, many women's advocacy groups and sex worker groups appealed for either decriminalization or regulation of the communicating law street prostitution. After six years the committee finally published their report and although, their had been over 50 reported murders of sex workers in Canada during that time and the committee noted that violence prevention could most likely occur if prostitution was conducted indoors, the committee ultimately decided against recommending regulating or decriminalizing any of the prostitution-relation offences as they felt if might “send a message of endorsement of prostitution when there is much evidence of the victimization of its participants”.
The reports of violence and murder against sex workers, particularly street based sex workers, had increased over the next few years. In 2002 Robert Pickton, dubbed Canada’s worst serial killer, was arrested and charged with the murders of 27 women who engaged in street based sex work in Vancouver, BC. ) As a result of these murders NDP MP Libby Davies, who was troubled at the murder of dozens of sex workers from her East Vancouver riding, lobbied the federal government to, once again, review the laws and policies against adult prostitution, and “recommend changes that would reduce the dangers facing sex trade workers and ensure safer and healthy communities.”
Another government subcommittee was formed, called the Standing Committee on Justice and Human Rights, and although this subcommittee met and spoke to sex workers, sex workers rights organizations, legal experts, women’s groups, residence committees, anti violence groups, and academics from all over Canada, the committee could not come to a consensus as to whether the prostitution laws should be amended, or removed. ) Even though committee members from the Liberal, and New Democratic Party felt that laws against people providing commercial sexual services should be repealed, the Conservative government, who was and is currently in power, rejected any move towards repealing any of Canada's prostitution laws.
The announcement of Safe Haven Initiative was well timed as not only did the Standing Committee on Justice and Human Rights release their report only four months prior, but the trial of Robert Pickton was about to commence, and the media was beginning to focus on the rights and safety of sex workers, as well as how the Canadian laws contribute to the lack of rights and safety afforded to sex workers. While the majority of sex worker rights organizations, both nationally and internationally, support the decriminalization of all laws against adult prostitution ), many feminist and women’s groups are reluctant to support the full decriminalization of prostitution, as many still view prostitution as a form of exploitation and/or violence against women. There are generally two stances that feminist and women’s groups usually take when it comes to prostitution, the first is the total abolishment of prostitution through the full criminalization of prostitution and its related activities. This point of view is supported by REAL Women of Canada, who recommend that,
“Since the act of prostitution itself is not an offense under the Criminal Code, the latter should be amended to prohibit prostitution itself, as well as prohibit the activities surrounding prostitution; i.e. keeping a common bawdy house, living off the avails of prostitution, etc.” (REAL Women, 2002)
As well, Relais femmes, a feminist organization that rejects decriminalization, stated that,
“Introducing provisions that remove barriers to the trade in women’s bodies and legitimize the fact that men have unlimited access to the bodies of a certain number of women, thus creating two classes of female citizens: so-called respectable citizens and those dedicated to the sexual comfort of men.” (Kurtzman, 2005)
The second stance that feminists and women’s groups often take when it comes to the issue of prostitution is that Canada should adopt the same approach as Sweden did in 1999 when it criminalized the clients, pimps, and brothel keepers, but not women selling sexual services. Organizations, such as the World March of Women, the Women's Innovative Justice Initiative, and the Vancouver Rape Relief and Women’s Shelter have all advocated for this, as Janice Raymond, of the Coalition Against Trafficking in Women, speculates, “The principle behind the Swedish prostitution policies makes clear that prostitution is officially acknowledged as a form of male violence against women, a harmful practice and a serious threat to gender equality and a tangible expression of the belief that in one country, at least, women and children are not for sale”. (Raymond, 2004)
Sex worker rights organizations in Sweden have denounced these laws, saying that not only are they discriminatory against sex workers (ex. sex workers can risk being evicted from their homes if their landlords do not want to be seen as earning money from prostitution or operating a brothel), but have also pushed sex workers off the streets and into more isolated and dangerous surroundings. “Sex workers also report that the networks between sex workers that existed before on certain known streets for prostitution have disappeared or weakened as a result of the sex-purchase law. Earlier you could warn each other for dangerous customers, fake cars, etc. … The "normal" clients have almost disappeared from the streets. Those who remain are the ones with a twisted mindset and street prostitutes today are more exposed to robbery, assault and rape than before.” (Lund, 2007)
Both the Safe Haven Initiative and the majority of sex worker rights organizations around the world cite New South Wales and New Zealand as examples of legislation that has benefited both sex workers and society. Valerie Scott, a plaintiff with the Safe Haven Initiative and a member of Sex Professionals of Canada, points out that both police and the court in New South Wales take reports of violence and exploitation very seriously and, claims that decriminalization and has resulted in making prostitution a safer, healthier, and more financially-rewarding career.
However, even though there are not many feminist groups that are supporting this legal challenge, the Safe Haven Initiative is receiving a lot of support from academics, legal groups, and sex worker organizations, including Prostitution Alternatives Counselling and Education Society of British Columbia (PACE), Sex Worker's Community Alliance, Prostitutes Empowerment Education and Resource Society (PEERS), Pivot Legal Society, and the Canadian HIV/AIDS Legal Network.
As a person scheduled to testify for the Safe Haven Initiative, which is set to commence on April 11th 2008, I feel that the decriminalization of offences against adult prostitution is an important component in both decreasing the violence against sex workers, as well as granting them equal rights under the Canadian Charter of Rights and Freedoms. Throughout my experience working with sex workers I have seen first hand how the laws against adult prostitution deter victims of assault from reporting the assaults to the police. Among the most common responses I have heard against reporting crimes to the police are that the police will not listen as they’re “only a prostitute”, that the legal system will not convict a man for hurting a prostitute, and that they are afraid that if they go to the police that they themselves will be charged with a prostitution related offence (which I have seen happen to women while I’ve gone with them to report an assault). The Toronto Police Special Victims Unit, a unit I work closely with, has informed that the police only hear about 2% of assaults against prostitutes, and that the laws are one of the main contributing factors for this. The result of the laws targeting adult prostitution is that we have more women in jail then men who have harmed them. To me, any law that prevents a woman from reporting rape or an assault is a law that needs to be removed. It is for this reason, among others, that I advocate for the complete decriminalization of the laws against adult prostitution, as well as support the Safe Haven Initiative. I believe that by allowing women to have complete choice over what they do with their body and sexuality, and by ensuring that all women have the freedom to report an assault against them to the police (without risk of facing prostitution-related charges), the Canadian will have made a huge leap in both advancing women’s rights and decreasing violence against marginalized women.
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