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Supreme Court's prostitution ruling puts sex worker safety first

Jail cell surveillance video image of serial killer Robert Pickton, shortly after his 2002 arrest on charges of murdering sex trade workers who vanished from Vancouver
Jail cell surveillance video image of serial killer Robert Pickton, shortly after his 2002 arrest on charges of murdering sex trade workers who vanished from Vancouver's Downtown Eastside.
— image credit: Black Press file photo

A Supreme Court of Canada ruling to strike down Canada's prostitution laws is being hailed in B.C. as an irrevocable step toward protecting sex trade workers from violent predators.

The unanimous 9-0 ruling gives the federal government one year to craft new legislation or else the industry will legally be able to communicate openly, operate brothels and profit from prostitution.

"This is a total victory," Pivot Legal Society staff lawyer Kat Kinch said after the ruling was announced Friday. "Sex trade workers' lives can't be sacrificed at the cost of regulating prostitution."

Kinch predicted it will enable a range of practical safety measures for sex workers, including better screening of customers, spotting by friends or peers, hiring of security guards, and the use of apartments or hotel rooms.

She said the ruling makes it clear Ottawa must put safety first in considering any further legislation, adding sex workers should be at the forefront of those discussions.

The court referred to the murders by Port Coquitlam serial killer Robert Pickton in striking down the law as a violation of constitutional rights to life, liberty and security of the person.

"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes," the judgment said.

"A law that prevents street prostitutes from resorting to a safe haven… while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose," it said. "If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects [of the law] is established."

SFU criminology professor John Lowman said the Harper government faces a tough choice of approaches if it opts to bring in new legislation.

He said the U.S. approach of criminalizing both the purchase and sale of sex hasn't worked well, although there are variations south of the border.

"You could have legalization of prostitution as you have it in Nevada, which is the state acting as a pimp, controlling and regulating prostitution and using criminal law to keep it off the street," he added.

The owner of Nevada's BunnyRanch brothel has already said he wants to expand into Canada if allowed.

Lowman said he thinks federal Conservatives are more likely to gravitate toward the so-called Nordic model used in Sweden that makes it legal to sell sex but not to buy it, while also criminalizing any third party profiting from the sex trade.

"What you have is the ridiculous spectre in countries with that legislation that they can only focus on street prostitution," he said.

"Because what are the police going to do? Set up escort services and massage parlours in order to entrap men. I don't think that would fly in Canadian law."

That would invite more constitutional challenges, he said, although it may be embraced by feminists who think women's equality can only be achieved by ending prostitution.

"Unlike radical feminists, who treat prostitutes as if they're infants – a highly paternalistic approach – my position is we need to give women choices, we need to create economic equality."

He said addicted survival sex workers arguably don't have much choice, but added social programs are what's needed to help them escape prostitution, or at least be in a position to make that decision.

"Ironically, it's social programs that the Conservatives seem least interested in providing."

Lowman said there's a good chance the Tories could also opt to let the laws be struck down and let individual municipalities or provinces try to regulate prostitution at a local level, rather than enforce a consistent national approach.

That could result in a spectrum of approaches from city to city, with some attempting various tactics to ban prostitution to those that license and regulate brothels in specific areas, he said.

More court challenges would likely ensue, Lowman said.

A more constructive approach, he said, would be to follow New Zealand's model, which legalizes prostitution, subject to regulation, and relies on other criminal laws to control violence, coercion, trafficking and exploitation of children.

Lowman said politicians have been told for decades the laws on prostitution don't work but they refused every chance to enact reforms until the high court finally forced their hand.

"This is precisely a situation where the court is justified in telling the government to do its job when the government has consistently refused and over 300 women involved in prostitution have died as a result," he said.

"They didn't die as a result of government directly wielding the knife, they died as a result of the government herding those women into dark areas where they were forgotten, where people like Pickton could wield the knife. Government has blood on its hands."

Justice Minister Peter MacKay said he's concerned about the ruling's ramifications and will explore "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."

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