The Supreme Court of Canada was unanimous: our prostitution laws do more harm than good. The laws take a lawful activity and make it more dangerous. It is an important victory for sex workers and their allies who support decriminalization. But, the debate is anything but over.
Three criminal laws were at issue: the laws preventing bawdy houses or brothels; living on the avails of prostitution; and communicating in public for the purposes of prostitution. Each law, according to the Court, increases the risks faced by sex workers.
The bawdy house law prevents sex workers from working in one place, rather than on the street or other risky locations. "A law that prevents street-prostitutes from resorting to a safe haven such as Grandma's House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose."
The law preventing living on the avails prevents sex workers from hiring body guards, drivers, even receptionists, who could increase their safety.
And the communication law increases the risk faced by sex workers, by forcing them into more isolated areas, preventing them from taking the time to screen clients and setting terms such as condom use or safe houses.
The Court unanimously struck down these three laws as unconstitutional, but suspended the remedy for a year.
There is much to applaud in this ruling. But, there is also much in the ruling that sets the stage for a less than progressive response. The Supreme Court ruling is, after all, all about reducing the risk and danger of prostitution. There is nothing in the ruling about how these laws harken back to a nineteenth century sexual morality of protecting the public from bad sex and fallen women. There is nothing in the ruling about demoralizing and decriminalizing prostitution.
Indeed, the Court made it clear that its ruling "does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted." There is, instead, an open invitation to Parliament to write new criminal laws. According to the Court, "The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime."
Justice Minister Peter MacKay has already stated that his government will try to do precisely that. "We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons."
The decriminalization of prostitution should not mean non-regulation. After all, we are Canadian – we regulate everything. Rather, sex work after decriminalization would require extensive discussions around zoning, licensing, occupational health and safety, amongst other regulatory options. And as other jurisdictions that have decriminalized prostitution have shown, some options are better than others from the point of view of the rights of sex workers.
This is the discussion we should be having. But, the next year is likely to be taken up not with the question of whether to criminalize prostitution, but rather how to criminalize prostitution.
The Supreme Court of Canada vindicated the rights of sex workers today. But, the struggle for decriminalization of prostitution is anything but over.
Brenda Cossman is a professor of law at the University of Toronto.