A trial in error?

Why should a Toronto court decide Canada’s prostitution laws?

by Philip Slayton

A trial in error?Terri-Jean Bedford is a professional dominatrix. According to a newspaper report, her happiest hours have been spent tying up male clients and spanking them at her north Toronto “bondage bungalow.” Now, Bedford is playing in a different, and more serious, arena. She’s in court with two other sex workers, trying to change Canadian laws governing prostitution. Prostitution itself is legal in Canada, but Bedford and her colleagues are challenging provisions of the Criminal Code that make it illegal to operate a bawdy house or live off the avails of prostitution.

These laws, they say, drive prostitutes onto the streets and deny them the protection that could be given by a manager, bodyguard or chauffeur. The result, they argue, is to make their trade much more dangerous, exposing them to people like Robert Pickton, the convicted serial killer of Vancouver streetwalkers. They claim that the laws infringe their constitutional right to security, found in Section 7 of the Charter of Rights and Freedoms, and should therefore be struck down.

The Bedford hearing took place in October, in Toronto, over seven days. A verdict is expected in a few months. The judge, Susan Himel, spent much of her time listening to a debate about the relationship between law and morality, and hearing about social policy that might be considered desirable.

Much of the applicants’ evidence tried to establish that it was safer for prostitutes to work indoors instead of outdoors. There were 18 expert witnesses. Some testified to the merits of decriminalizing prostitution, and described how there was less violence against sex workers in jurisdictions that have gone in this direction—the Netherlands and New Zealand, for example, where sex-service businesses are lawful. The federal and Ontario governments, in turn, argued that prostitution exploits women and harms the community. Three interveners—the Catholic Civil Rights League, the Christian Legal Fellowship, and REAL Women of Canada—filed a joint submission that spoke of the shared morality of Canadians and said that more than 80 per cent of us belong to religions that hold prostitution immoral.

None of this should have happened. A courtroom is not the place to decide moral questions or determine social policy. Judges are not appointed to perform these tasks, and, however worthy they may be as judges, are not particularly competent to do so. A government lawyer working on the Bedford case told me that the hearing reminded him of a parliamentary subcommittee inquiring into a proposed law. “Issues like these shouldn’t be before a judge,” he said. “They belong to Parliament. Lots of us involved in the case think this.”

It’s convenient for politicians to have the prostitution problem in the courts rather than before Parliament. The topic is complicated and controversial. It engages the emotions. People get angry. Votes can be lost. That makes it good political tactics to duck behind the Charter of Rights and Freedoms. But the result is that those who want to change the law are forced away from the political arena, where moral and social policy arguments could be considered head-on, and due weight given to public opinion. They are pushed into the courts, and forced to make complex and technical constitutional arguments, which obscure the real issues.

Now we wait for Justice Susan Himel to rule on Terri-Jean Bedford’s application. It doesn’t much matter what Justice Himel says, however, because this case is headed to the Ontario Court of Appeal no matter what, and most likely to the Supreme Court after that. The smart money says that Terri-Jean Bedford is going to end up losing. If she does, those who want reform of prostitution laws can only hope that the attention they have attracted along the way will get politicians to do something.

If Bedford wins, the laws against operating a bawdy house and living off the avails of prostitution will no longer have any effect. Will Parliament then step in and deal comprehensively with the prostitution issue? Don’t count on it. The Supreme Court struck down Canada’s abortion law in 1988, in the famous case of R. v. Morgentaler. There has been no replacement legislation since. The result is that for more than 20 years, Canada has had no abortion law at all. Prostitution could easily join abortion on the too-politically-difficult pile.

Since the 1982 Charter of Rights and Freedoms, Canadians have come to love re-characterizing political problems as legal questions. We should stop doing it. Our elected representatives should deal with the issue of prostitution, and not let the judiciary decide it by default.

A trial in error?

  1. Probably the only smart thing Trudeau ever said was that government has no place in the bedrooms of Canadians. Too bad he never followed through on this and made it law.

    • I believe he was referring to consentual homosexuality, with no change of money involved.

      I don't think it hurts to have the court system look at an issue like this, so that it can be determined what is actually legal and constitutional. In other words, to define how much of the issue is legal and how much is political. This makes it harder for politicians to duck and run in the long term. If the case made it this far, there has to be some strength to the argument that current laws are non-constitutional. This isn't a hot-button issue for me, but if there is a conflict between the constitution and the legal system, it's better to have it out in the open.

      • No YSP, you are wrong. You are making an assumption of what Trudeau sad. He sad that whatever two adults do in the bedroom, if it is consented by both of them, it`s no government issue. Whatever you think he was refering to, it is your problem. Please keep in mind his words: he NEVER specified homossexuality. He sad WHATEVER people do in the bedroom.
        If people want to pay for that, it is THEIR BUSINESS. Not yours, not the government`s, not any religious or feminist association.

        • Trudeau's quote may not have specified homosexuality – and I believe it would be correct to draw a general political philosophy from his quote; but the quote originated as a response to an omnibus bill he was introducing as Justice Minister that addressed criminal laws related to homosexuality, divorce and contraception.

      • Terri-Jean Bedford lookee like a man

  2. Morality in a secular society is our observance of enforceable laws. Therefore the courts must retain authority to deliberate and decide the morality of laws. Otherwise religious laws will overtake secular laws and divide civil society. The court should hear submissions about correlating religious laws and note their unenforceability (ie what about all those catholics who use prostitutes and have abortions). Nothimg about this case is ‘too technical’ or complicated for the court to deal with. Are you saying that courts shouldn’t do their work because Parliament doesn’t work? This piece is advocating for ANARCHY!

    • I think you are confused, Karen. In a secular society, Parliament expresses morality in the form of laws. Interpretation of those laws in terms of how they are written and what they mean, in law, is the role of the courts. Additionally, the courts may assess a law against an authority higher – in a sense – than Parliament: the Charter and the Constitution. Where Parliament has surrendered discretionary, majority-rules law making to enshrined rights, the courts help us determine how those rights are, or are not, offended by a particular law.

      I agree with you that the courts are competent to hear the case and that it is not beyond them to adjudicate. I just don't want to surrender morality to the courts when it is, by definition, a subjective standard that the community defines in law through Parliament, so long as it is within constitutional/Charter limits.

      • Why don't you post a note about the HIGHEST AUTHORITY?

  3. This comment was deleted.

    • I would agree that much of the media and general public in Canada don't seem to understand (or perhaps prefer to ignore) the fact that these laws go largely unenforced, certainly the ones relating to the off-street sex businesses. No one could deny that the escort agencies and massage parlours are in the sex business, and are therefore considered criminal under the present "living on the avails" law, while actually being licensed in Canadian cities. If we heard this description for a foreign country, we would assume the authorities were corrupt and being paid off.

      It would be difficult for anyone to defend keeping these laws by saying they are too important to get rid of, yet simultaneously not important enough to enforce in any substantial way. However, while perhaps relevant to a general discussion on the merits of these laws, the situation may have no bearing on the specific ruling to be made in this court challenge.

    • Whether they acknowledge it or not, police generally "look the other way" when it comes to these escort agencies and massage parlours everyone knows are in the sex business (thus violating the 'living on the avails of prostitution of another person', section 212.1.j of the Criminal Code). There are something like 200 or more of them in the Toronto area alone. It does seem to be an illogical position to attempt to excuse the lack of enforcement of these laws by saying that they are not important enough to enforce in any substantial way, yet simultaneously trying to say they're too important to eliminate ( like New Zealand). However, the fact that police and municipal licensing authorities turn a blind eye to these supposedly outlawed businesses may not be relevant to the specific ruling to be made in this court challenge.

  4. Good article. Having politically apponted judges dictate policy totally destroys the goals of democracy. This issue should be the object of a free-will vote by the citizens of the country, not a few elitists.

  5. That is a ridiculous suggestion without precedent. Plebiscite voting on one issue is so rare in Canada that to suggest that people would turn out to vote on this is just stupid. Anarchy, in fact. Forget courts, forget parliament, the ‘people’ should decide everything…

    • How is it anarchic to have plebiscites? I personally don't liek them, but if they are conducted according to law and properly administered, how is that anarchic?

  6. I think the article, though perhaps not specifically intending this, misleads the reader to see the problem as being in the justice system, though there is some balance in the end when it blames parliament. The courts are only dealing with what is brought before them, it is our elected reps who are failing to address this issue. Like abortion, politicians will hide behind vague half measures in order to avoid taking a risky stand on the issue. There's no political gain to be had in this, so don't expect it to be addressed any time soon – who is going to choose between what will be defined as "promoting prostitution" or "not protecting women." The only chance to do what NZ or Netherlands did will be under a strong majority government.

  7. The law has always had some role to play in politics and even morality, and the Charter pretty clearly increases that role. It would be foolish to make these kind of determinations in the absence of social science evidence. I am sure that Mr. Slayton, given his pedigree, understands this, and find it unfortunate he chooses to pander in this manner.

  8. I invite the writer to read ‘The House that Hitler Built’ by Stephen H. Roberts as background for his for his upcoming book. If you are building a coffin for Canadian Federalism you’ll know it by the end of that book.

  9. And uh._.pardon me if this embarrasses the writer, but to say that Canada has no abortion laws is quite simply a lie. There are provincial laws that restrict the use of public spaces around abortion clinics and laws that control the collection of abortion statistics. I could say more but it might send you running to Ms. Bedford for a good spanking and I wouldn’t want you to catch cold.

    • Do you not think you are parsing this a bit too finely? The writer was clearly alluding to laws governing the medical procedure itself. To call his statement a lie is more than a bit harsh, it is a very injurious assertion, given the demonstrably interpretive nature of your judgment.

      After reading over your posts today, I followed your link to your blog, dedicated to slagging MacLean's. Your imprecise understanding of concepts, loose use of language and overall combination of assumed superiority and contempt for others' work must be the reason you are so lightly followed.

      • I'd like to respond but I'm limited to 1200 characters or 210 words and that's just not enough space. When my intense debate account is restored to full rights I'll do it, or if you want to engage with me on my blog just leave your comments there and I'll write posts to respond (posts because I use intense debate on my blog and I'm subject to the same size limitations there as here).

  10. Hmmm. Too bad Macleans paid for a piece that wasn't properly researched. The writer seems to have missed the last, most interesting and most relevant day of arguments, published by the National Post over two months ago: http://www.nationalpost.com/story.html?id=2146791
    "But Mr. Young (Bedford's lawyer) said this case was never about a constitutional right to sell sex. He said the government turned to story telling, myth making and fear mongering to defend the federal legislation. They have failed, he said, to put forward empirical evidence that casts doubt on his common sense and logic-based proposition: that safety can be enhanced for prostitutes if they move indoors and if they pay someone to take care of them…He called it bizzare for opposing lawyers to say the laws are designed to protect people usually considered outcasts. "The government of Canada has never been concerned with the health and well-being of sex workers." …" Actually, Mr. Young stated that as a remedyto the health and safety issue, Parliament can make prostitution illegal.

  11. Just read up on who the writer is. A lawyer that wrote an expose of the Canadian legal system AFTER Bedford's lawyer wrote a book on the same subject. Hasn't done much else. Funny that some people seem to ride on the coattails of groundbreakers without breaking new ground themselves. I'd say Karen and Ryan commenting here are much more intellectual and relevant than the writer. Macleans should pay them to write!

  12. How bout they let the majority decide? Isn't that what is suppose to be in the first place?

  13. If a private citizen wants to provide sexual services in the privacy of a home or business location, there should be no legal impediment.
    The running a common bawdy house laws are to insure a full-fledged brothel isn't being run in an inappropriate location and prevent organized crime being involved.

  14. this is really disturbing. this woman is a souless money hungry excuse for a human being. prostitution is the result of desperation and broken souls. to feed off of the victimization of people is criminal. nobody deserves to be rented out for their parts to sexually gratify some heartless bastard that can’t have a normal decent relationship. i e mailed this woman awhile back and pleaded with her to include mandatory counselling for the “workers” if she insisted on pushing for legalization. 94% of sex trade workers were abused as children, approx 83% sexually. she herself was sexually abused as a little girl but told me she  is only concerned with the business of making money and does not care about giving anyone the chance to be counselled out of the “profession”.  these people  deserve to be made whole, childhood  abuse, addiction and poverty  leads them to the sex trades. this is fact. men need to be educated to the facts. some are just souless animals beyond help.   if Bedford gave her head a shake, did the counselling she just may possibly find a man willing to be her whipping boy for love instead of profit.

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