Oldest Profession or Oldest Oppression?: Addressing Prostitution after the Supreme Court of Canada Decision in Canada v. Bedford

The future of Canada’s laws related to prostitution has become an urgent public policy issue in the wake of the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford. Three prostitution-related offences in the Criminal Code were found to infringe the Canadian Charter of Rights and Freedoms and are to be struck down, effective within one year. The Court’s decision of December 20, 2013 has spurred a national debate on the issue as Parliament has this limited timeline to adopt any new legislative approach, or else Canada will face the de facto legalization of adult prostitution. Studies have painted a bleak picture of prostitution in Canada: • Street-level prostitution represents between 5–20 percent of all prostitution, the rest occurring indoors; • the majority of prostitutes entered prostitution between 14 and 20 years of age; • a disproportionate number of prostitutes were sexually abused as children; • substance abuse is significant among street prostitutes; and • marginalized women, including Aboriginal women, are particularly vulnerable to prostitution and more likely to face violence (including assaults, sexual assaults, and murder). Parliament has an opportunity to respond, within the general constitutional parameters that the Court has set. Decriminalizing/legalizing prostitution in the foreign jurisdictions reviewed in this paper (the Netherlands, New Zealand, Germany, Australia (Queensland), and the United States (Nevada)) has not been the hoped-for panacea for protecting prostitutes. Such an approach is not recommended. Canada should instead overhaul its prostitution laws. The starting point for such an approach could consist of three key components, inspired by an abolitionist model developed by Sweden and since adopted by other countries. The evidence from an independent inquiry is that such a model is working to reduce prostitution, change public attitudes, and undermine criminal elements and sex trafficking. First, going forward, Canada’s objective should be to abolish prostitution. Its harms are inherent and cannot simply be regulated away. Second, prostitutes themselves should not be criminalized, but given support to help them exit. Leaving prostitution is the only way to truly protect prostitutes. In most provinces, this intensive assistance is sorely lacking. It has been suggested that the perpetrators of prostitution (“johns” and “pimps”) should pay substantial fines that could be used to fund such services. There is merit in exploring this idea further. Finally, our criminal laws and enforcement should instead target pimps, traffickers, and johns with enhanced penalties – they are the perpetrators responsible for the harms of prostitution.

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