A scholarly paper concludes that Bedford v. Canada erroneously rewrote the law against “living on the avails of prostitution” on basis of misrepresented as well as faulty evidence, and contravenes prior Supreme Court cases and the Charter by making prostituted persons more vulnerable to exploitation.
To date, living “on the avails of prostitution of another person” has been illegal in Canada. That law was challenged in the Court of Appeal for Ontario in Bedford v. Canada on March 26, 2012. The court essentially found that the law prevented prostituted persons to benefit from third parties such as brothel management, escort agencies, bodyguards, or drivers — all whom were perceived as able to enhance the safety and well-being of prostituted persons. Hence, the avails provision was rewritten by the court, stating that it “applies only to those” who live on the avails “’in circumstances of exploitation.’”
Now, a recent working paper from Stockholm University penned by Max Waltman, a PhD Candidate at their Department of Political Science, concludes that the Court of Appeal for Ontario erroneously rewrote the law against “living on the avails of prostitution” on basis of misrepresented as well as faulty evidence, and as a result made prostituted persons more vulnerable to exploitation. The paper highlights how the Bedford ruling contravenes previous Supreme Court cases on prostitution, and is inconsistent with equality guarantees under the Canadian Charter of Rights and Freedoms. Waltman suggests a different decision based on the notion of equality under the Charter’s case law, which would effectively endorse the Swedish prostitution law in Canada that criminalizes purchasers and pimps, and decriminalizes prostituted persons. The case will now head to the Supreme Court. (If you are new to the Bedford ruling, and want to get caught up on the basics, you can read a clear description of the decision here.)
When the Court of Appeal for Ontario’s decision was handed down this spring I had some questions about their ruling, including the following:
- How did the Court of Appeal come to its conclusion? What research influenced their decision?
- How did the decision align with the Charter of Rights and Freedoms?
- Can the Ontario Court of Appeal’s rewrite of the Criminal Code regarding “circumstances of exploitation” prevent exploitation in prostitution effectively?
On a hunt for some answers, I contacted Max Waltman to give me his thoughts on the ruling. Waltman has written about legal challenges to pornography and prostitution that effectively challenged them as practices violating equality and other human rights in democratic systems, focusing on judicial and legislative politics in Canada, Sweden, and the United States. He has previously published in the Michigan Journal of International Law (2011), Women’s Studies International Forum (2011), Political Research Quarterly (2010), and in the popular press, among others New York Times (2012) and the Toronto Star (2011). Waltman, who has family ties with Ontario through his late father who was brought up and spend half his life there, realized that the country and province which he previously admired for their commitment to social equality and solidarity had moved to a position where, if no one intervened, they will become the haven for traffickers and pimps across North America.
Though Waltman had initially agreed to an interview, the final result was a full, in-depth working paper that examines the evidence and arguments relied on by the Court of Appeal for Ontario. The paper finds that the evidence did not support their decision. In practice the rewrite makes prostituted people, a group which is already subject to intersectional and multiple disadvantages, even more exposed and vulnerable to exploitation and abuse. Accordingly, the paper concludes that the Bedford decisions violate previous Supreme Court case law as well as they contravene the Charter’s section 15’s substantive equality guarantee, which impels a different decision. The paper further states that by upholding the existing criminalization of purchasers and third parties where they apply, and invalidating the criminalization of prostituted people — persons whom should rather be entitled to social support if the wish to leave prostitution, and rights to damages from purchasers and pimps for having violated their equality and dignity — Canada would, consistent with the Charter, promote equality and facilitate for prostituted persons to leave prostitution, which the overwhelming majority say they want. A similar law already exists in Sweden, and has reduced prostitution many times compared to neighboring countries.
I am honoured to share this paper with you, and believe its content to be of paramount importance for Canada’s decision makers on this issue. Please download the paper below, take some time to read it thoroughly, and spread it around.
You can download the full working paper from the Social Sciences Research Network here, entitled “Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments & Substantive Equality in Bedford v. Canada.” It is a great read, and the download is FREE!
This is exactly the kind of analysis we need as the issue of prostitution moves to the Supreme Court of Canada. Thank you, Max, for taking the time to write such a well-researched, thorough piece, to better equip us to prevent sex trafficking and exploitation in this country.
I’ve read much of your blog and referenced material. Up front, I support and applaud your efforts to protect exploited women/children in Canada and around the world. I totally agree that no woman or man should be forced to do something against their will, especially when it comes to decisions about our own bodies.
People living in a free society have the right to decide what to do, and not do, with their own bodies. This is the real reason why, regardless of the many legal arguments on both sides, Canada’s prostitution laws are wrong. The ‘Avails’ law would hold water only if the avails were the product of an illegal act. This case has upheld the law only when exploitation (force) is in effect because that is an illegal act, and there is a victim who’s rights have been violated. This covers the vast majority of trafficking situations. The original ‘avails’ law was written far too broadly, and as such could even subject a prostitute’s legitimate family members to prosecution, to say nothing about security/driver/agent she or he may need to hire in order to pursue a legitimate business.
What is prostitution, really? It’s two adults agreeing to have sex for financial consideration. If the same two people had sex for marriage, love, a promotion, fun, to produce a salable video, or just because, no law can interfere with it. Actually, in Canada, no law can interfere with the act of prostitution itself, because the law doesn’t exist. Why doesn’t it exist? Back when these nuisance laws like Avails, Communication, and body house were passed, why didn’t they just make one law that made prostitution itself illegal? They couldn’t, and can’t, because such a law would never pass a constitutional challenge. Such a law would be criminalizing the REASON adults might choose to have sex with each other. Most Canadians believe in the individual’s right to their own body without being considered criminals. We have the right to same-sex relationships/marriage, we have the right to abortions, equal pay for equal work, and hopefully someday the right to die when we choose.
The things you fight for are already illegal in Canada. Trafficking an individual, for sex or other work, is already illegal. Forcing anyone to have sex against their will for any reason is illegal. Sex with children, of any kind and for any reason, is illegal. Your cause is a good one, and your should keep fighting it, but attacking legitimate sex work is the wrong fight.
I know, because I’ve read yours and others works on the subject, that you will claim that the concept of legitimate sex work is flawed. That ALL sex workers are, by definition, exploited. All of the studies I read, all of the articles you’ve quoted and linked to, focus on street prostitution, or ex-sex workers who now regret their choices. There are few studies or articles on sex workers who freely chose the lifestyle, even temporarily, and don’t regret the choice. Most anti-sex work advocates claim that these people don’t exist, or that they’re such a minority that they don’t count. This is the biggest myth of modern prostitution. The women, and men, who successfully pursue this work by choice don’t appear in studies. They don’t appear in news reports. They work under the radar, and there are far more of them than most of us realize. In Canada, there are likely more of them than trafficked/minor sex worker. But that can’t be proven by a survey or study.
You often reference the solution Sweden has imposed as the ‘model’ to solve the perceived problem of prostitution. But, for every article and study you can find supporting this theory, I can find one that states quite the opposite. What’s really happened in Sweden is that the wrong kind of prostitution (trafficking, minors) has been forced deeper underground, where it is harder to find and investigate. Legitimate sex workers have been forced to keep a lower profile and accept riskier clients. Their preferred clients, the sort who are safe to do business with, are afraid to book due to the risk of prosecution. To stay in business, the sex worker has to reduce the level of screening, or leave the screening to third parties. The laws in Sweden have made sex work more dangerous for the prostitute, not less. If you don’t believe this, find an active professional in Sweden and ask her. Yes, Sweden has reduced the ‘visible’ prostitution in its cities. That makes the politicians look good and the public feel good. I bet it doesn’t make the women who are still being trafficked there, but are now nearly invisible, feel very good.
My wife is a former sex worker in Canada (no, that’s not how I met her). She is a highly intelligent, talented, and strong woman. She has two university degrees. She is not the result of a broken home, drugs, or abuse of any kind. She decided, on her own, to work as an independant escort when her first husband lost his job and the only work she could find was insufficient to pay the rent. Her husband was aware of her decision, and neither encouraged it or discouraged it. He felt it was her own decision to make. Eventually, he got work again and she was able to stop escorting. They eventually split up for other reasons and then she met me. We’ve been together for 7 years now. She now has a well paying job with a big corporation. In their scenario, the laws that you would retain in Canada would consider her ex-husband a criminal, for he did ‘live off the avails’ for a period of time. He was no pimp, there was no abuse, and they remain friends to this day. She does not regret her time as an escort. She’ll tell anyone who knows about it that it was her choice, and she got out of it by choice. She doesn’t feel exploited, and she will not allow you or any other so-called advocate to call her a victim. Since meeting my wife, I’ve met many other professional sex workers, (as a friend, not a client). They were all intelligent, independant women. They should be allowed to pursue their chosen profession without fear of legal or social stigma for themselves or their clients.
This is the problem with many laws that are badly written. If you want a law to stop someone doing something that is hurting people, then write a law specifically to accomplish that. Go after the traffickers, people who have sex (paid or not) with children. I’ll support you all the way. Don’t pass or support a law that makes criminals of adults having consensual sex, even if it’s for money. If that’s morally right, then also make a law to criminalize people who get married for money, or have sex for any other reason than ‘love’.
Regards,
Mathew.
Matthew, I apologize for my delay in responding to this, as it has been a while since I looked through comments. Thanks for your input, especially coming from someone whose wife had a personal experience in the sex industry, I appreciate that you took the time to voice your thoughts.
A few things – we have interviewed police officers (including the officer in charge of surveillance) in Sweden who said that trafficking in fact has not gone underground as a result of the law. If customers can find it, so can they. And they have seen numbers go down.
We have also spoken to some women who are working in the industry who have made the choice to be in it, so these arguments are nor foreign to me. I have heard many of their stories, and my desire is not to discount them. However, when we were in Hungary trying to figure out why many women are ending up in Amsterdam and Zurich as trafficking victims, the number one reason was because it was legal there, giving traffickers an opportunity to blend in.
We have been to 10 countries in the last 5 months looking at these various models, and are trying to learn as much as possible. I realize this is a very complex issue, and we are trying to move forward in our research with wisdom and discernment. Thanks so much for your perspective, this is such an important conversation.