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Upholding the Rights of Sex Workers

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In an important decision, Supreme Court of Canada has struck down several anti-prostitution laws. The Court did not rule any regulation of sex work unconstitutional, but any regulation of sex work 1)has to be a regulation of a public nuisance and not a moralistic interference with sex work itself, 2)has to protect rather than threaten the safety of sex workers, and 3)has to be fairly enforced.

These laws have the same kind of problems that we discussed yesterday: not only do they generally make the lives of sex workers worse off, but arbitrary enforcement is endemic. Chief Justice McLachlin’s opinion is very good on this point:

The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice: principles that attempt to capture basic values underpinning our constitutional order. This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective). These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

This ruling has a lot in common with the most famous Canadian security-of-the-person case, R. v. Morgentaler. On one level, the opinion is narrow, leaving the state some leeway to regulate on behalf of legitimate state interests. In this case, some municipalities (and, while I’m more skeptical here, Parliament) might pass narrowly tailored regulations of sex work that enhance the safety of sex workers rather than threatening it. More likely, given the choice between “arbitrarily enforced spasms of moralism that leave sex workers substantially worse off” and “nothing,” the choice will be “nothing.” Which is a major improvement over the status quo, and exactly the kind of case where the courts should intervene.

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