On Friday, the Supreme Court of Canada has the opportunity to be on the right side of history when it releases its decision in Bedford, a case challenging the constitutionality of Canada's sex-work laws.
Like many countries, Canada has a long history of using the criminal law to send messages about good sex and bad sex. As you might have guessed, sex between two married, heterosexual adults has always been good sex. Most other types of sex? Bad sex.
In 1967, the Supreme Court upheld a decision placing a man in indefinite detention after he was convicted of sodomy and deemed to be an "incurable homosexual." In 1969, largely in response to the decision, the federal government led by prime minister Pierre Trudeau decriminalized sodomy and famously initiated a project of taking the state out of the bedrooms of the nation. Forty-six years after the decision, it is safe to say that the Supreme Court of Canada was on the wrong side of history.
Last week, the Supreme Court of India was widely criticized for upholding a similar law criminalizing gay sex. Four years earlier, a lower court had struck the law down. In the decision, the Supreme Court of India told us that gay sex is still bad sex. Undoubtedly, history will not be kind to the decision – for many, it already reads like a relic from another era.
Today, the Criminal Code of Canada still tells us that sex where there has been an exchange of money – sex work – is bad sex. When the Supreme Court of Canada releases its decision on Friday, it has the opportunity to focus its analysis on the harms caused by the criminalization of sex work, instead of sending messages about good sex and bad sex. What side of history will the Court be on?
In Canada, the act of exchanging money for sex is not – by itself – a criminal offence. But most related activities are. Three key sections of the Criminal Code prevent individuals from working indoors, allowing others (including security guards and drivers) to profit from another person's work, and soliciting in public.
There is strong empirical evidence to suggest that sex workers, particularly those who work on the street, are vulnerable members of society. They often experience systemic inequality on the basis of a number of overlapping identity categories including gender, race, disability, and class. As a society, we have a collective responsibility to respond to this reality. But the criminalization of sex work only makes the systemic inequality worse.
Canada's laws expose sex workers to high rates of violence and, as the Robert Pickton case demonstrates, death. Being unable to work indoors means sex workers are often forced to work in risky locations. Being unable to hire security guards and drivers means sex workers often have to work in isolation. And being unable to solicit in public means sex workers often don't have enough time to properly evaluate their client, let alone take down vital information to protect themselves, such as a license plate number, before moving off the street. In an effort to say that sex work is bad sex, the criminal law ultimately puts the safety of sex workers in jeopardy.
Like Canada's former laws criminalizing sodomy, these provisions are – for many – relics from another era. Critics will say that it I have conflated gay sex with sex work, and that such a comparison is inappropriate. While the two are qualitatively different, one thing unites them: the criminal law has historically viewed both as bad sex, and punished transgressors accordingly.
Some lower courts have agreed with sex workers who have challenged the laws. After a lengthy trial, Justice Susan Himel found that all three sections of the Criminal Code were unconstitutional.
The federal government then took the case to the Ontario Court of Appeal, where it was partially successful. In a heavily split decision, the court struck down the provision preventing sex work from occurring indoors, but essentially upheld the other two.
The Supreme Court agreed to take the case and, last summer, heard oral arguments. During the hearing, the Court heard submissions from a number of interveners, including the Christian Legal Fellowship, the Canadian HIV/AIDS Legal Network, and Pivot Legal Society.
And now, just a few days before Christmas, the Supreme Court is set to release its decision. By striking down all three of Canada's antiquated sex work provisions, the Supreme Court has an opportunity to make the lives of sex workers safer by focusing its analysis on the harms caused by criminalization, instead of sending messages about good sex and bad sex.
Will the Supreme Court be brave enough to strike down all three provisions, or will it render an opinion similar to last week's decision from the Supreme Court of India?
Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality, and gender identity. Follow him on Twitter.