Kate Shannon & Sandra Ka Hon Chu
Full Comment

Legalize the sex trade

This Thursday, the Supreme Court of Canada is set to hear Bedford vs. Canada, a case on the constitutionality of criminal laws governing sex work. The case, brought forward by three sex workers — Terry-Jean Bedford, Amy Lebovitch, and Valerie Scott — is a direct result of the refusal of consecutive federal governments to respond to enormous volumes of evidence that these laws do more harm than they prevent.

The science is unequivocal: criminalization of sex work in Canada, and globally, has been an abject failure in protecting sex workers from violence, predation and murder, and has exacerbated vulnerability to HIV and other health inequities among sex workers. While the buying and selling of sex between consensual adults has never been illegal in Canada, criminal laws prohibit working together indoors, owning or renting an indoor place for sex work, living off the avails of prostitution, or communicating in public spaces for the purposes of sex work by sex workers, clients or third parties. Together, these laws make it virtually impossible for a sex worker to work legally, even though the act itself is not forbidden. Evidence has consistently shown that these criminal laws engender stigma, force sex workers to work in isolated and hidden spaces, and prevent access to basic health and support services, including legal and social protections.

Indeed, Justice Susan Himel's landmark ruling for the Ontario Superior Court, striking down the challenged criminal laws, was based on a large body of expert evidence that laid bare the striking hypocrisy in Canada's approach to purportedly protecting some of our most marginalized citizens. Justice Himel's ruling concludes: "By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance." Enforcement of the communicating law displaces sex workers to isolated areas and forces them to rush transactions with clients for fear of arrest, limiting sex workers' ability to screen clients or safely negotiate the terms of transactions and condom use.

The failure of criminalization was made most evident by the devastating legacy of the missing and murdered women in Vancouver, most of whom were sex workers struggling with poverty and addictions, aboriginal sex workers and other vulnerable populations. Moral and political ideologies are an unconscionable substitute for evidence-based public policy on sex work in Canada.

Protecting the health and human rights of sex workers means removing all criminal laws surrounding sex work, including the purchase of sex. Calls for Canada to follow countries such as Sweden and Norway in criminalizing clients (sex buyers) and third parties are willfully ignorant to the continued harms to sex workers of a criminalized and policed environment. There is no evidence that criminal sanctions targeting clients has any impact on reducing harms to sex workers or the conditions within which a sex worker works, nor does it have any effect on deterring the demand for sex work. Instead, punitive approaches to clients continue to force sex workers to provide services in clandestine locations and fear police, placing them at continued risk for violence and undermining their ability to negotiate the terms of transactions. Taxpayer dollars continue to be invested in anti-prostitution policing rather than addressing issues of violence and exploitation in the sex industry and our broader community, or improving access to health and support services for sex workers.

This federal government has at times shown an alarming disregard for evidence that does not align with its political and moral preferences. It is our sincere hope that the Supreme Court looks beyond controversy and moral outrage, and recognizes the rights of sex workers to work in the safest conditions possible without fearing the law.

— Kate Shannon, PhD, is assistant professor of medicine and director of the Gender and Sexual Health Initiative at the University of British Columbia. Sandra Ka Hon Chu is senior policy analyst at the Canadian HIV/AIDS Legal Network.