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.