Is prostitution legal in Canada? The simple answer is that there is no law prohibiting prostitution that defines it as a crime. However, the Criminal Code contains a legislative regime that effectively makes it impossible for sex workers to carry on their work legally. A communicating law prohibits sex workers from soliciting clients on the street and engaging in basic client screening. A bawdy house law constrains sex workers from taking their business to a secure indoor location at a brothel.
This week the Supreme Court of Canada will hear a landmark appeal in the case of Terri Jean Bedford that challenges the constitutional validity of the sexual solicitation and bawdy house laws. The court will also consider whether the criminal offence of living on the avails of prostitution should be limited to situations of exploitative conduct.
Bedford's position on the appeal is that the current laws prohibiting prostitution related conduct deprive sex workers of their Charter right to security of the person, by significantly contributing to an increased risk of harm. Sex workers are forced to work in isolated, poorly lit and dangerous locations to avoid detection.
The Supreme Court of Canada has established a compelling precedent in favour of Bedford's argument. The case involved Insite, a supervised injection site located in downtown Vancouver. Insite provided addicts the opportunity to inject themselves in a safe environment and with medical supervision. Insite was able to operate lawfully because of a federal exemption from the law prohibiting the possession of narcotics.
When the exemption was set to expire and the federal government sent strong signals that it wouldn't be renewed, a court challenge was launched.
The challenge was successful and the Insite facility was permitted to remain open. In the Supreme Court of Canada's unanimous ruling, it was held that criminalizing possession at Insite would compel addicts to move from safe injection sites to more dangerous locations, such as alleyways and street corners where the health risks from self-injection were much greater.
When the Ontario Court of Appeal issued its decision in the Bedford appeal, the striking comparison between the perilous circumstances of prostitutes and drug addicts was highlighted:
''We see a parallel between the circumstances of drug addicts who, because of a criminal prohibition, cannot access a venue where they can safely self-inject and therefore must resort to dangerous venues, and prostitutes who, because of criminal prohibitions, cannot work at venues using methods that maximize their personal safety, but must instead resort to venues and methods where the physical risks associated with prostitution are much greater.''
The element of danger associated with street-based sex workers was a critical feature of the recent Report of the Missing Women Commission of Inquiry. The inquiry was called as a result of the multiple murders of Vancouver street-based sex workers in Vancouver by Robert Pickton.
The Commissioner of the Report, Wally Oppal, found that women engaged in the survival sex trade were deeply affected by the violence associated with their work. The summary of the Report contained the following conclusion:
''There is no dispute that women engaged in the survival sex trade are at an extremely elevated risk for various forms of severe violence. In a study of 255 women with comparable life experience to the missing and murdered women, all of the participants reported fearing violence and its pervasive influence on their lives and being victims to extreme forms of male domination.''
In light of the Oppal Report and the Insite decision, it is likely that the Supreme Court of Canada will strike down the law prohibiting bawdy houses. We can anticipate having licensed brothels in cities across Canada in the next couple of years. The law against sexual solicitation, however, is likely to remain intact. The Supreme Court will likely not depart from the reasoning of the Ontario Court of Appeal in Bedford which held that communicating is associated with serious criminal conduct and has a profound impact on members of society.