The prostitution debate has metamorphosed into what looks to be a long, drawn-out legal battle in Canada’s western province of British Columbia. Prostitution is not against the law in Canada, but almost all behavior associated with it is. Brothels are illegal, even though they’re scattered all over Vancouver’s Downtown Eastside. The West Coast Cooperative of Sex Industry Professionals has legally incorporated, but doesn’t have government approval to start operating its co-op. Vancouver mayor Sam Sullivan is not opposed to the opening of a brothel co-op, but earlier this year Justice Minister Rob Nicholson assured co-op hopefuls that they would not gain government approval. No side is winning, and nobody knows how events will turn.
Actually, advocates for legalization have gotten much bigger, stronger, and louder in recent years. Susan Davis, spokeswoman for the British Columbia Coalition of Experiential Communities (BCCEC), which is spearheading plans to open the co-op brothel, is a busy lady these days. Then again, the abolitionists have the law on their side, not to mention slow-moving Canadian bureaucracy, lead by an unflinching Conservative government.
But it looks like both sides are now using paper as a weapon. Pivot Legal Society, one of BCCEC’s main allies, is relying on the Canadian Charter of Rights and Freedoms for the next major strike. That’s right, they’re taking the issue to the Supreme Court, arguing that prostitution laws, which include not being able to communicate for the purpose of prostitution and not being able to live off the avails of prostitution, go against sections 2 (freedom of communication / association), 7 (right to life, liberty, and security of the person), and 15 (right to equality) of the Charter. Their court date may be set for over a year from now, in traditional Canadian bureaucratic fashion, but both sides are already taking their positions.
This should also give everyone enough time to read the fine print: Even if prostitution laws are found to go against certain rights granted by the Charter, section 1 allows this if the government can justify the laws. Back in 1990, the government was able to reject this same challenge, simply by stating that the laws are meant to prevent a nuisance to the public. But wait! Another provision states that if the effects of the laws are disproportional (if the amount of harm done is greater than the benefits of the law), then it may also be struck down. And that brings us back to square one. The law clearly causes harm to many women involved in prostitution: They get into cars without being able to discuss their terms, it is illegal to warn each other about bad tricks, they are pushed outside to work, and they can’t save the money they earn, since it is not derived from legitimate work. And the benefits? None, according to legalization advocates. But by this, they mean that it does not benefit the women who have decided to work in prostitution. But this debate is not just about them. It involves many other people. Specifically, those who have been forced into prostitution against their will. Judging by Karen Mirsky of Pivot Legal Society’s remark that their analysis of the situation left out foreign and domestic sex trafficking, deciding instead to “defer to the academics” because the issue is “too high in its level of intensity”, it looks like this side has not yet made a full assessment of the harms and benefits of the law.
Whatever happens, reform is clearly needed, because both legalization or decriminalization advocates and abolitionists have noted serious problems with current laws. But if they are overturned, then whatever replaces them must also go through the same thorough analysis and every single affected group must be considered. A hands-off approach to the sex industry means one thing to Susan Davis, with 22 years of experience in prostitution and plans to open a museum and restaurant in the co-op brothel, and something entirely different to the First Nations girl on Vancouver’s “kiddie stroll” waiting for the day that the police will ask her age.