Decriminalisation is the starting point : what next for Canada?

04/10/2010 at 02:09 1 comment

I really like the following extract from an editorial on Prostitution and the Law in the Ottawa Citizen (Sep 30 2010.)  It captures an issue that I think is not well understood – that  removing  criminal laws against sex workers is only the first stage of the reform needed to improve sex workers lives.  Many people in the movement are struggling to respond to the demand for ‘evidence’ that removing the criminal law will itself achieve a whole lot of desirable outcomes, such as reducing HIV or human rights abuses. But no such evidence exists.  The question is wrong. The fact that sex workers are subject to abuses where sex work is legal, as well as where it is semi legal and completly prohibited,  tells us that more than absence of criminal law is needed.

Removal of the criminal law is essential.  It removes the main barrier to sex workers achieving justice. It creates a space that can be filled by effective rights based policy and labour regulations and law. This is what happenned in the much touted example of New Zealand.   But ‘decriminalisation’ is not a solution in itself, and it is not a solution if the gap it creates is filled with wrong policy and law.  Good regulations and policy don’t automatically kick in when criminal laws are removed  – even in rich and well governed countries, let alone where regulatory systems generally  are not well organised.  The process of struggling for effective rights based policy and labour law must now take place in Canada and it’s regrettable that the energy of activists there will first be diverted by an appeal against Justice Himel’s judgement.  What happens next in Canda will be important for the world and we are lucky indeed to have such  strong and determined sex workers  activists there to drive that process. Forward and Upward !

Cheryl  Overs

The judge who struck down Canada’s prostitution laws was doing her job, and doing it well. It will be up to our elected officials to ensure that the removal of those laws does not create new problems…Justice Susan Himel of the Ontario Superior Court found that the laws “force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.”

She did not take it upon herself to rewrite Canada’s prostitution policy. In fact, she went to great lengths to explain that her job was merely to determine whether government had overstepped its constitutional bounds in creating the current laws. She admitted that in removing those laws, she is opening the door to unlicensed brothels. “It is legitimate for government to study, consult and determine how best to address this issue,” she concluded, and therefore stayed her decision for 30 days. That stay could be extended.While the Ontario and federal governments have vowed to appeal, Parliament still needs to update the prostitution laws. Constitutionality aside, it’s clear that these laws have done nothing to make marginalized women less vulnerable to the monsters who prey on them.

Criminal law that targets the prostitutes themselves might not be the best way to protect prostitutes and their neighbours, but that doesn’t mean that anything goes. The ruling does not require cities to set up red-light districts. There are many ways to regulate prostitution to minimize the harm to women and to their neighbours. And there is certainly nothing in the ruling to prevent governments, at all levels, from working to help prostitutes get out of the business and, in many sad cases, get off of drugs and alcohol.

While Himel did provide a review of practices and policies in some other countries, it’s not her job to choose among them. Parliament should consider which model would work best for Canada. The city governments should have a voice in that discussion and, perhaps, a role in implementing any new policy regime.

The worst mistake would be for Parliament to avoid this question, as it has avoided abortion, same-sex marriage, polygamy and other difficult social issues. In the absence of appropriate regulation, communities could find themselves powerless to stop dangerous activity. This is a conversation Canadians need to have


Entry filed under: health, HIV and AIDS, human rights and law, sex work. Tags: , , , .

Here comes the judge ! : Justice Himel on Farley and Raymond Rantsev v Cyprus and Russia : can a sensible judgement stem the trafficking hysteria ?

1 Comment Add your own

  • 1. Joyce Arthur  |  06/10/2010 at 04:07

    Thank you Cheryl, great post! Just one point about the appeal – SPOC (the plaintiffs) and the sex worker rights movement in Canada fully expected it to be appealed. In fact, we want this because the decision only applies in Ontario. Canada’s criminal laws are federal. In order for the decision to apply to all of Canada, the Supreme Court of Canada needs to rule on it. Also this is the first and only court decision in Canada that has sided with sex workers, so it sets a rather novel precedent.

    Because it’s a provincial court decision, and because it’s just one decision by one judge that deviates from previous decisions, it doesn’t have enough strength to dictate policy in other provinces or change federal laws. So it needs to be affirmed by our Supreme Court. We hope we can get individual cities/provinces outside Ontario to stop enforcing the laws in the meantime, but most governments are pretty conservative and it will be an uphill battle.

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