By Peter Berton

YNOT – In September 2010, Canada’s courts struck down the country’s prostitution laws. Justice Susan Himel ruled that Canada’s prohibitions against keeping a common bawdy house, living on the avails of prostitution and communicating for the purposes of the trade violated sex workers’ Canadian Charter rights to freedom of expression and security of the person.

Not surprisingly, Canada’s federal government has appealed the ruling.

Sex Professionals of Canada is fighting the government on behalf of Canada’s sex workers. SPOC brought the case before the courts in order to stop the harassment and arrest of those who ply their trades across the country.

The biggest irony: Prostitution actually is legal in Canada. However, communicating with potential clients is not. Prior to Himel’s ruling, prostitutes worked under a system akin to being allowed to sell beer while being prohibited from operating a bar or liquor store, making a living as a bartender, or even telling someone you worked in that field.

Nikki Thomas is a sex worker based in Toronto. She’s also SPOC’s executive director.

YNOT.com: Please tell us about the fight to decriminalize prostitution in Canada.
Thomas: Back in 1985, the Mulroney government passed a variety of laws to limit and restrict prostitution, while completely ignoring the findings of the Fraser Commission [which recommended easing existing laws be retained]. The [Mulroney] government believed prostitution was a social disease and inherently harmful. Essentially, they viewed sex work exclusively from a moral perspective and refused to view the situation from a logical perspective instead.

The laws they passed actually made our work less safe and have directed contributed to deaths and assaults of sex workers. More than 25 years later, we’re still fighting to remove those sections of the Criminal Code that continue to put us in danger.

But isn’t prostitution legal in Canada already?
That’s part of what makes this situation so strange. Prostitution is entirely legal, provided both parties are over 18 and consent to whatever acts may occur.

However, there are a number of laws that restrict prostitution so severely that it’s practically illegal. Specifically, there’s section 210, usually referred to as the “bawdy house law;” section 212(j), the “living on the avails” subsection of the “procuring law;” and section 213(c), the “communicating law.” There are other sections of the Criminal Code that deal with prostitution, but these are the three main laws that make up a majority of sex-work-related criminal charges. These are also the three laws that we challenged for constitutional reasons.

What was the court challenge all about?
Our court challenge holds that these three laws make sex work more dangerous, and as such, violate Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees security of the person.

The Crown replied that these laws were acceptable due to the “reasonable limits” clause in Section 1, but we can’t see how it could possibly be “reasonable” to force people to choose between following the law or violating the law to increase our safety.

Fortunately, Justice Himel agreed and struck down the impugned provisions for that exact reason. She found it is unreasonable to make sex workers choose between legality and safety.
At the crux, [the issue is] primarily about safety, but it’s also about freedom: Who has the right to tell me who I can or can’t have sex with and under what conditions? I can fuck as many people as I want as long as I’m not asking for any money, but the moment a financial transaction occurs, it all of a sudden becomes illegal. How does that make any sense at all?

So, if you won the court challenge, why are sex workers and their clients still being arrested?
Even though we won a huge victory at the Ontario Superior Court level, the Crown appealed the decision less than 24 hours after Himel’s judgment was released. The original decision included a 30-day stay during which the decision would not come into effect. Back on Dec. 2, the Court of Appeal decided to extend the stay until April 29, and it will now be extended until the [appeal] has been heard. Technically, the laws remain on the books, even though there’s no chance a judge would actually proceed with a trial when these laws are being contested in a higher court.

The other reason is a bit more complicated. You see, when someone is charged with a sex work-related offense, [the case] usually doesn’t make it all the way to trial. Prosecutors prefer to use alternative methods to deal with the charges, often offering a “diversion” program to first-time offenders. For clients, this usually includes a few sessions at a “John school” where they’re told about how evil and horrible prostitution is. For sex workers, it usually involves some kind of “rehab” program that’s designed to stop them from returning to sex work in the future.

The big problem is that these programs are funded by mandatory “donations” that come from the people who are charged. The continued existence of these programs depends on a steady stream of arrests in order to maintain a steady stream of funding. So essentially, various police departments are laying charges they know will never stick, then pressuring people to take the easy way out through one of these programs. It’s terribly deceitful and a horrendous abuse of power, but they’re still doing it on a regular basis.

Where does the appeal stand now?
The government’s appeal will be heard by the Ontario Court of Appeal from June 13-17, and we expect a decision sometime in 2012. Then, regardless of the outcome, the losing side will appeal to the Supreme Court of Canada, and if they agree to hear the case, we’ll go through it all again at the federal level. Our colleagues in [British Columbia] have launched a similar challenge, and it’s possible the SCC will hear both cases together, as they did with R v. Kouri and R v. Labaye, which were the two cases that decriminalized swingers’ clubs. We probably won’t have a final decision until 2014, if not later.

Won’t the government just install a new law to ban prostitution if this one falls?
That’s a big concern for us, because other jurisdictions have more punitive laws than Canada does, and there’s always a chance that we’ll end up with a worse set of laws than we started with. However, our position is still the same: The lack of good laws is not an excuse to keep bad laws on the books.

At the same time, we’re preparing for the moment when the laws are struck by the Supreme Court and the government of the day decides to deal with this once again. When they do, we’re going to make sure that our perspectives are included in the discussion, and our voices are heard by the lawmakers.

As far as we know, there aren’t any prostitutes currently serving in the House of Commons (although some [members of parliament] seem to “prostitute” their opinions to the highest bidder). That’s why it’s absolutely vital that [MPs] hear from people who are actually involved in the industry, before they pass more bad laws that restrict our freedoms or compromise our safety.

Where does the Canadian public stand on this issue?
It’s hard to tell exactly where things are today, but I look at it like this: Most Canadians are pretty reasonable people. They respect other people’s rights to act as they please, as long as it’s within the privacy of their own homes. The Trudeau-attributed phrase, “The state has no business in the bedrooms of the nation” still rings true for most of us. But that’s where things get tricky: If [citizens] think [sexual activity] happening outside that private space, then they’re not nearly as supportive or respectful. The problem is that almost all stereotypes of sex workers involve outdoor street work.

I think of it like this: Canadians will support sex work if it’s happening out of their sight, but not if it’s happening in their streets or playgrounds. They’re OK with people doing it quietly, but it’s the public perception — fueled heavily by the mainstream media — of a ragged, abused, drug-addicted streetwalker that always comes to mind.

When people hear “prostitution,” they think of all the problems they automatically associate with it. Most sex workers work quietly, independently and indoors. They do it by choice and enjoy what they do. But because these people keep their business to themselves — largely due to stigma and fear of arrest and prosecution — they’re invisible to the rest of the public.

Yes, there are definitely sex workers in terrible situations, and we do whatever we can to help them. But to assume the most visible representation of sex workers is also the typical sex worker is a mistake. There are so many different people working in different realms of sex work, it’s simply impossible to determine what the typical sex worker might be. That’s one of the reasons we engage the public on this issue — to show them the stereotype is by no means the rule.

How do you hope this situation will play out?
Ideally, we would like the laws to fall and for sex workers to go about their business as we have all along — without the violence and persecution, of course. But we know that’s not realistic. There’s bound to be government debate and interference, so we’re preparing ourselves for any possible result. If the laws fall, we will be deeply engaged in public dialogue and discussion, to ensure our participation in whatever decision the government makes.

Are sex workers looking for any form of regulation at all?
We’ve actually been working hard to develop new regulatory concepts based on evidence gathered in other countries, but the most important thing is ensuring time at the table. Sex workers are almost always excluded from public discussions on this issue, but when sex workers are consulted and involved in the regulatory process, the results turn out much better for the workers.

Some of the worst places for sex workers are those jurisdictions that are heavily regulated. [The regulations] actually make things worse for the workers than it was in the first place. We’d rather see a simple certification program, like SmartServe or something along those lines, rather than a full-on licensing program that requires exorbitant fees. If the government doesn’t make it easy and affordable, nobody will bother with it. [Instead, they’ll] continue to work “under the table.” So, we need to make sure our voices are heard.

How do you plan to celebrate if the government’s appeal fails?
I think I’ll wait until the Supreme Court rules on it; then, I’ll pinch myself, just to be sure, before I start planning my Canada-wide tour. There are so many places I’ve never been, and if the laws finally fall, I’ll be able to visit those places without the constant threat of arrest. That would be the sweetest gift of all.