10/25/2012 07:49 EDT | Updated 12/25/2012 05:12 EST

Sex Workers Deserve Our Day in Court

A prostitute talks to a driver in Ipswich's red light area in the early hours of this morning.
A prostitute talks to a driver in Ipswich's red light area in the early hours of this morning.

On Thursday, the Supreme Court of Canada will decide whether or not they will hear the government's appeal of the Ontario Court of Appeal's decision from March 26, 2012. They will also decide on whether they will hear the cross-appeal launched by the applicants, which seeks to restore the original decision from Justice Susan Himel in its entirety.

Some quick background on the case: in 2007, a group of sex workers -- Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott -- launched a constitutional challenge against three parts of the criminal code surrounding sex work: Section 210, the "Bawdy House" law; Section 212(j), the "Living on the Avails" law; and Section 213(c), the "Communicating for the purposes of solicitation" law. It should be noted that NONE of the laws being challenged would have changed the legal status of non-adult or coercive prostitution, which would (and should) remain illegal; this challenge was explicitly limited to sex work between consenting adults.

On September 28, 2010, Justice Susan Himel of the Ontario Superior Court agreed that these laws were unconstitutional under Section 7 of the Canadian Charter of Rights & Freedoms, which guarantees Security of the Person. Justice Himel correctly ruled that these laws forced sex workers to choose between their liberty and their security, which goes against our constitutional rights. Sex work is a legal profession, and these laws were deemed overly restrictive and disproportionately harmful to those involved in sex work.

Subsequently, the government launched an appeal, which was heard by the Ontario Court of Appeal in June 2011. On March 26, 2012, all five justices unanimously agreed that S.210 was unconstitutional, and upheld the original decision. Regarding S.212(j), all five justices agreed that the provision was unconstitutional, except in cases where "exploitation" was evident. Lastly, on a 3-2 split, the Court of Appeal ruled that the S.213(c) "Communicating" law was constitutional, and overruled Justice Himel's decision on this law. However, a very powerful dissenting opinion from Justices MacPherson and Cronk went against the majority, leaving the Communicating law anything but clear.

The government has again appealed the OCA's decision, and on October 25, the Supreme Court of Canada will decide whether they will hear their appeal or not. A cross-appeal has also been launched by the applicants, seeking to overturn the OCA's decision on the Communicating law and to seek clarification on the meaning of "exploitation" for the purposes of the Living on the Avails provision. Ultimately, it is my hope that the SCC agrees to hear the case in its entirety, for a number of reasons.

First, the decision is currently only applicable in Ontario, despite the fact that the Criminal Code affects all Canadians. As such, only a decision from the SCC can enact a nationwide change to these laws, even though a similar challenge is already under way in British Columbia; SWUAV (Sex Workers United Against Violence) recently won a judgement granting them standing to contest these laws on similar grounds.

Second, the OCA's decision to uphold the Communicating Law is nothing short of a travesty. Street-based sex workers are disproportionately targeted for violence and abuse, and for the court to deny them an important way of protecting themselves -- asking questions of potential clients, and establishing rules and boundaries -- is reprehensible, especially since communication represents so little of a public nuisance that it can easily be viewed as negligible. What the ability to communicate provides is something I call critical distance -- the ability to create time and space between sex workers and our potential clients, to determine whether they are legitimate clients or a potential threat.

For those of us using different business models -- arranging appointments through the internet, or over the phone -- this critical distance is already built into our modes of communication. We can take whatever time we deem necessary to screen our clients, request whatever information we require to establish trust, and take as much time as we need to decide if we want to see this person, or decline their request. This critical distance allows us to make thoughtful and reasoned decisions, without restrictive time pressures, or feeling ourselves under the constant and immediate threat of arrest. More importantly, it allows us to establish accountability on the part of our clients, which is the single most important means for deterring violence.

The vast majority of violence against sex workers is opportunistic, rather than malicious; people attack and exploit us because they think they can get away with it, without fear of legal consequences. Police apathy, social stigma, and the threat of legal repercussions all combine to create a potentially-explosive environment in which we must work, and only by establishing accountability on the client's part can we deter the opportunism that puts so many of us in danger. Street-based sex workers are the most vulnerable of all, and the ability to discuss details and expectations with potential clients without the threat of a Communicating charge will lessen that vulnerability considerably, and give street-based workers the chance to assess a potentially-dangerous situation.

Sex work is a highly contentious issue, but it is a legimate profession that one can freely choose if so inclined. Whatever personal or moral objections one may have towards the profession, this challenge is about much more than morality -- there is simply no justification for creating unconstitutional laws that only serve to make an entirely-legal profession even more dangerous. We Canadians all have a right to life, liberty, and security of the person, even those of us involved in sex work -- and no government laws may infringe on those rights. That's exactly what this challenge is all about.

A longer version of this post originally appeared on the author's site. Nikki Thomas is the Executive Director of the Sex Professionals of Canada, but the views expressed here and on her website are exclusively her own.

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