About Bedford Versus Canada
In 2007 Professor Alan Young and his legal team represent myself, Val Scott and Amy Lebovitch in a law suit against the federal government saying the main laws designed to deter the sex trade were unconstitutional. In 2010 we won the suit completely. In 2012 the Ontario Court of Appeal upheld most of our victory. In 2013 the Supreme Court of Canada agreed fully with the lower court judge in a 9-0 decision. I offer here edited and augmented (updated) extracts from the first edition of my first book, Dominatrix on Trial.
The specific legal arguments for striking down Canada’s prostitution laws centered on the fact that it was impossible for sex-trade workers, whose occupation is not illegal and who are overwhelmingly women, to pursue this lawful trade in a safe and secure environment. They are not permitted a secure premises, security guards, or even accountants. Their landlords can be charged. This means that a large underground industry arises, inviting the interference of pimps and organized crime, and these women are afraid to report it when they are abused by their pimps or crime bosses. If a prostitute goes to the police, she fears being charged, especially if she is the perfect recruit for prostitution: a young, female illegal immigrant who has been put to work in brothels and massage parlors and does not even know whom she is working for. Raids on these establishments are regular, and new ones open up as soon as old ones close. The point is that the prostitution laws are not constitutional, because they negatively impact a segment of society in a discriminatory manner.
The legal battle was over a period of six years . The challenge was filed and announced in 2007. Affidavits were filed by the three plaintiffs and the experts in the ensuing months. Early in the process, there were also hearings in front of a judge by various groups who wanted to be interveners. Interveners are parties to the proceedings in that they get to provide evidence and arguments to the judge. Cross-examination of the experts behind closed doors went on from mid-2007 to mid-2009. No judge was present during testimony, but transcripts were produced. In the fall of 2009, nine days of arguments by the lawyers and interveners were held before a judge. In the fall of 2010, almost a full year after the last day in court, the judge, Judge Himel, released her decision. The appeals were heard at the Ontario Court of Appeal in 2012 and the Supreme Court of Canada in 2013.
On our side, twenty-one witnesses tendered affidavit evidence for the application. Collectively we described and outlined the nature and frequency of physical and psychological violence experienced by sex-trade workers in Canada. Of the twenty-one witnesses, eleven had worked or were working in the sex trade. Of these eleven, four were then working for groups or associations that provided assistance to sex-trade workers. Eight witnesses had academic postings at various universities across Canada, and most had conducted formal research into issues relating to violence against sex-trade workers. One witness was a journalist, and another was a member of Parliament. All of them maintained that the current legal regime significantly contributed to the risk of violence experienced by women who entered the sex trade. The Crown countered with thirty-two witnesses of their own.
To sit in on those sessions was to observe some stunning contrasts. Our experts gave statistics and evidence that stood the test of cross-examination. They debunked the myths about the harm that would arise if prostitution were legalized. They accurately portrayed the experiences in other countries where the laws were more liberal. They established that things were getting worse for women in the sex trade under the current laws and that governments were fighting—to the limited extent they were fighting—a losing war. Our experts were on point in that they addressed the legal points on which the application turned and, unlike the opposition’s experts, they didn’t just spout platitudes. Our experts were effective when cross-examined, whereas theirs were easily dismantled by Alan in cross-examination.
Judge Himel took one year to prepare her decision and released it in September 2010. In her 131-page decision, she noted that she had examined 25,000 pages of material encased in 88 volumes. So this was not a whimsical ruling by a lower court judge. She pointed out what her decision was not about. It was not about the good and bad of prostitution, or even what prostitution was. It was also not about whether prostitution was illegal. It was not. The decision was about whether three provisions in the Criminal Code were constitutional. With that in mind, she went into a great deal of detail about what might make laws unconstitutional. Finally, she put her decision into context. She distinguished what her role was and what Parliament’s role was, and put it squarely to our political leaders that they had some work to do.
She analyzed the evidence given by the witnesses, particularly the experts. She analyzed the affidavits and transcripts of the cross-examinations of dozens of expert witnesses. In addition, she analyzed, in the context of this case, what Parliamentary committees and working groups and other committees had published prior to this case. She commented extensively on the experience of other countries in dealing with prostitution, thereby answering squarely most of the comments on this topic made subsequently by those who had not read the decision. And finally, she commented at great length on what other judges had to say about the arguments used by our side and by our opponents. According to learned commentators, she was writing as much for higher courts as anyone else.
She found that our application was right. The laws against communicating for the purposes of prostitution, living off the avails of prostitution, and keeping a common bawdy house were unconstitutional for a number of reasons. For one thing, they did not achieve their objectives but in fact worked in the opposite direction. She agreed that the laws prevented prostitutes from protecting themselves, and that the laws protected the perpetrators of violence against women more than they inhibited such violence. She agreed that indoor prostitution was safer than street prostitution. She agreed that the current prostitution laws were only minimally enforced. She agreed that the laws were too broad, leading to unelected officials distinguishing right from wrong. She agreed that striking down the laws would not lead to a dramatic increase in prostitution. She pointed out that numerous other laws are already on the books to combat the worst aspects of the sex trade. She went to great length to point out that Alan was right to say that the Crown’s witnesses were advocates more than experts, and that the Crown was often off point in arguing against our application. She further noted that the arguments against the application were also more rhetorical than relevant.
Going forward, the decision will have implications. It was a binding recognition of sex workers’ rights and of human rights generally in Canada. It proved the weakness, if not inability, of laws against prostitution to protect sex workers. The decision also court tested evidence of the effects of laws in other countries and dispelled the myths that the so-called Nordic Model is good policy or that legalization of the sex trade is detrimental.