Current Legal Debate
Canada’s Sex Trade Law:
The Current Constitutional Challenge
Thank you for having me this evening. I want to commend all of you for your various efforts past, present and future. As you likely know, I am the Bedford in Bedford Versus Canada, which is the primary basis for the current constitutional challenge to strike down Canada’s sex trade laws. This year will mark the tenth anniversary of the Supreme Court’s unanimous decision. My fellow challengers in Bedford Versus Canada, Val Scott and Amy Lebovitch, deserve great credit. Val is one of the challengers again this time and has never wavered in her activism. Amy has documented sex worker activism and worked as an activist since we won at the Supreme Court in 2013. Great women.
I have been asked to give my thoughts about the current challenge. The decision is expected any time over the next six months, but I want to comment about the challenge before the decision comes out, because I want to outline for you the context in which I think the challenge should be seen.
That challenge was very well organized and represented. That is largely because the sex worker activist groups today, under the umbrella organization The Canadian Alliance for Sex Work Law Reform, led by Jenn Clamen, are better organized and represented by more activists, than was the case in the past. They are making history and saving lives.
However we must keep in mind that the challenge, important as it is, is only one event in the process of legalizing or decriminalizing the sex trade. Let me explain. We have already had other court decisions since 2013, with more coming, which at the very least put the constitutionality of the current law in doubt. We have had a parliamentary review committee recognize that the law is very problematic, and the NDP members recommending decriminalization. We have had more and more studies and other evidence pointing to the need for legal reform. This means that even if the challenge fails, the law still has to go. The challenge is about constitutionality, not whether it is good law, although the two are closely connected.
Also, we activists must not allow the matter being before the courts being an excuse for Prime Minister Trudeau to not act. Quite the opposite. The courts take time, and women being harmed by the law need help now. An appeal might take a year. An appeal of the appeal another year. He voted against the current law. He said he would make evidence based decisions. He has enough evidence. The crap submitted and arguments made by the two lawyers of the Harper years, who Trudeau is now using as well (shame, although they are very personable people), is a national disgrace. Why is Trudeau allowing his current justice minister to order opposition to the challenge at all? I know that Ontario opposes the challenge, although former premier Wynn said she had grave concerns about the law. Why doesn’t she speak out? I am not naive. I know that Trudeau wants the issue to go away, for political reasons. But does he, like Harper, want the blood of innocent people on his hands? Is this one of the reasons Jody Wilson-Raybould was removed? Ask her! A member of parliament gave her my book.
I am also worried about activists waiting on the decision and perhaps the appeals. Activists, in my opinion, should set the agenda wherever possible, and not await decisions that beget appeals that beget who knows what. We should be advocating for the government to act, as the New Democratic Party has advocated them to do, to repeal the current law. Judge Susan Himel, in the 2010 decision in Bedford Versus Canada, said no new law was required to replace the one she struck down. She said laws against sexual assault, rape, human trafficking, confinement and illegal immigration were all that was needed to mitigate the worst aspects of the sex trade. The Supreme Court unanimously upheld her decision. So again, don’t take the matter of a pending decision as a reason not to be active.
We activists should advocate that if any new law is brought in to replace the current one, that it at least decriminalizes the sex trade. Anything outlawed should be specifically identified. Terms such as community standards and indecency should not be used. In short, enforcement of a law should not be on an arbitrary basis. Also, sex trade workers should have the assurance that when doing something legal it should not be illegal to have assistance and protection. In 1998 I was convicted in the bondage bungalow case. I still do not know why.
To this day I am proud. I am proud of the 2007 to 2013 efforts of Val, Amy and me in coming forward in Bedford Versus Canada. I am proud of Professor Alan Young, who is not only a great lawyer and professor, but who conceived of the challenge and put it all together. I am proud of the whole team of lawyers and students who worked with him on the case. I am proud of the experts who helped prove our case. I am proud of Judge Himel, who said no new laws were needed when the old ones were removed. I am proud of Supreme Court Chief Justice Beverly McLaughlin, who upheld Judge Himel and wrote the Supreme Court’s decision. My pride exists because it was that earlier challenge that has been so important in making the present one so strong.
My final thought is that we should consider how much good can be done in areas not related to the sex trade were it legalized or decriminalized. Resources would be more available for women’s’ shelters, and to collect child support. Courts would be less stressed. Organized crime would have less presence in the sex trade as customers would take care to visit licensed sex workers only. More money would be available for health care. Maybe we should be more concerned with these things, rather than legislating and enforcing that women should only have sex for free, and have no say in the matter – the way Harper and Trudeau have it. Thank you for having me here tonight.