The court’s ruling takes effect next year and allows prostitutes to conduct services at fixed locations, such as commercial brothels or their private homes, which was prohibited by a provision added to Canada’s Criminal Code in 1985.
“When people use the word ‘brothel,’ they’re thinking about some big, garish mansion with a million cars driving in and out,” said Cossman, describing what she saw as a distended public response to Ontario’s latest ruling on bawdy houses. While Canada v Bedford has been hailed a “landmark case,” Cossman is not alone in her view that the court could have done more to protect the rights of individuals in the sex trade.
In addition to striking down the bawdy house law, Ontario’s highest court rewrote a related provision that criminalized commercial relationships with prostitutes. “The problem with that law was that it prevented sex workers from hiring people to facilitate their work in safer conditions,” said Cossman. Effective 30 days from the ruling, prostitutes will be able to legally hire drivers, bodyguards and receptionists.
The newest version of the law excludes only relationships that exploit prostitutes, and is subject to the discretion of law enforcement. “Criminologists who study policing will tell you that this leaves the door open for police to imagine all types of exploitation that may or may not be happening,” said U of T Professor of Criminology Mariana Valverde. While she admits that the ruling is a step in the right direction to improve the safety of sex workers, Valverde is concerned that law enforcement may abuse their discretion to arrest individuals already on the police’s radar.
Additionally, the condition of exploitation begs the question of whether or not prostitution is exploitive by definition. “The government sees prostitution as inherently degrading and dehumanizing,” said Cossman, explaining that the Supreme Court might find grounds to uphold the original bawdy house law.
“It’s not as if there’s going to be this sudden explosion of brothels,” said Cossman in response to the concern that legalizing places of prostitution would produce more prostitutes. “Sex workers have been working all over the place, and are just going to keep working there, but now they’re going to work in ways that are safer.”
To prevent sidewalk solicitation, the law still prohibits public communication for the purpose of prostitution. “I really think they should have struck down the communication law,” said Cossman. “By not doing that, I feel like they’ve thrown the most vulnerable of sex workers under the bus.”
Two of the appellate judges found grounds to abolish the communication clause, as it prohibits prostitutes from evaluating prospective clients before taking them on, so to speak. For Valverde, the dissenting judges’ opinions indicate that the ruling might be overturned in the near future.
Before the case reaches the Supreme Court in 2013, the Harper government is tasked with devising a new law on the legality of brothels in accordance with the constitution. While Cossman believes the recent ruling will do little to immediately affect the conspicuity and safety of sex workers, she agrees with Valverde that Ontario’s decision will set a precedent for other provinces to challenge similar laws regulating prostitution.
In a tone that hardly veiled her cynicism, Valverde added, “It still has to go to the Supreme Court. So you wouldn’t want to invest a lot of money in a brothel at this point."