From Bad to Worse via a Successful Constitutional

C H A P T E R 11

From Bad to Worse via a Successful Constitutional Challenge The Tragedy of Feminist Engagement with Prostitution Law Reform in Canada MARIANA VALVERDE

In this chapter I recount a story with important implications for feminists around the world working on sexuality and the law. Many feminist lawyers and scholars around the world heard about the Supreme Court of Canada’s important 2013 decision striking down the main prostitution laws as unconstitutional, but there is not yet any published research on what the story of prostitution law reform in Canada tells us about feminism. Here, I draw on my experiences of the 1980s, when I was active as a public intellectual in the feminist “sex wars,” and also on more recent activities related to sex work law, experiences on the border between the academy and the street.1 Relying on one’s often self- serving memories is problematic; but to write this chapter I supplemented my observations and informally acquired information with twelve interviews carried out in the winter of 2014–15. In contrast with many other stories in this book, the story recounted here tells us more about the failure of all types of feminism to have an impact on public policy—despite investing considerable energies on the field and despite major activity in both judicial and legislative arenas— than it is about the successes of any one version of feminism. The story of how a successful constitutional challenge in 2013 was followed by a new anti-feminist law in 2014 has one lesson in keeping with this anthology: that feminists pursuing law reform cannot trust right-w ing bedfellows. But other lessons can also be drawn, by and for those 263

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left-wing feminists who favored decriminalization and spent much energy on the constitutional challenge to the old laws. The first is that focusing energies on constitutional challenges can lead to a dangerous neglect of the legislative and regulatory arenas; and the second is that small groups of feminists who try to shape public policy in the absence of a strong and relatively coordinated women’s movement are likely to end up completely marginalized.

An Eventful Year in Prostitution Law Reform

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In December 2013, sex workers and their allies (including many around the world) were thrilled to see the Supreme Court of Canada strike down Canada’s three main prostitution-related laws, provisions similar to those found throughout the common-law world.2 The Court concluded that the laws prohibiting street soliciting and brothels, as well as a “procuring” law that erased the distinction between pimping and more mundane relationships, were unconstitutional. The key reason given by the unanimous court for striking down the three laws was that their documented effects, intended or not, increased the insecurity of sex workers, contrary to the constitutional guarantee of “security of the person” (section 7 of the Charter of Rights and Freedoms). “Safety” and “security” were the key words of the decision. By contrast, discussions of freedom of speech and gender equality (two other constitutionally protected rights) were very muted in the arguments presented at trial and were completely sidelined in the Supreme Court’s judgment.3 Stressing that criminal laws effectively added to the vulnerability of sex workers was legally useful, indeed essential, given Canadian jurisprudence on the state’s duty to cause no harm (or no further harm). A fairly conservative Supreme Court had decided, two years before, that public health and epidemiological data on the beneficial effects of safe- injection sites sufficed to stop the federal Conservative government’s plan to close down Vancouver’s safe-injection clinic, a clinic operating with provincial health ministry support but in breach of federal drug laws (Canada [Attorney General] v. PHS Community Services Society, 2011 SCC 44). The “state must not cause additional harm” logic of the PHS decision served the sex workers challenging the laws well. But relying almost completely on the argument of the additional harm to this group posed by criminal laws, however useful in the

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short-term for litigation purposes, had political implications that worried many sex workers and their advocates. The broader political- legal context, in Canada as in Europe, was and remains the transnational dissemination of new laws that paternalistically label all prostitution as inherently exploitative and criminalize all customers, in such a way as to make sex work individualized, secretive, and dangerous—t he “Nordic” model of sex work reform.4 Thus, stressing the “harm to sex workers” argument at the Supreme Court was a strategy with political risks for those (including the three sex workers who won at the Supreme Court) who favored decriminalization rather than a Nordic-style law “protecting” women and criminalizing male customers. Indeed, taking advantage of the global trend toward the Nordic model,5 the Conservative government, when forced by the Supreme Court to write a new law, cherry-picked a radical feminist phrase about prostitution being inherently exploitative to decorate a new law: the “Protection of Communities and Exploited Persons Act,” passed in December 2014, which is far more draconian and anti-feminist than the Nordic model of customer-criminalization laws.6 Contrary to the “exploited persons” of the law’s title, in the new law sex workers are recriminalized if they work on the street and happen to be near a school or playground. Sex workers can also be criminalized under the “material benefit” clause (a revised, rather vague procuring law) if they work in groups, whether off the street, on the street, online, or in any other way, since the “deriving material benefit” clause does not contain an exception for sex workers working together. For example, escorts who are financially autonomous but split the rent for a condo that they use at different times—a common situation in large cities— could be prosecuted under this clause.7 And unlike other Nordic-style laws, the new Canadian legislation completely prohibits all sex work advertising, including anywhere on the Internet. An exception is made for sex workers advertising their own services; but anyone who posts or publishes another person’s sex ad (and not just on Canadian- based websites) is liable to criminal prosecution. (This provision, as interpreted by the owners of websites that sex workers, especially escorts, rely upon, has already led to increased vulnerability, in that website owners reportedly tell women who buy web space that they cannot be explicit about what services they do or do not provide; and

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because male customers avoid using their real names for fear of prosecution, escorts feel and probably are less safe.) The law also contains a number of unrelated law-and-order provisions, such as increased sentences for sex trafficking (which was and remains a separate offense, not included in the Bedford 2013 challenge) and new categories and harsher procedures for sex offender registries. The law is thus more of a mixed bag than a coherent statement; and the mixed bag contains clauses that either directly or indirectly pose new legal risks for the very women who are described as inherently exploited in the “whereas” clauses and in the title of the statute. The government stopped short of criminalizing most sex workers; such a move would have been totally at odds not only with the Supreme Court decision but also with Canadian public opinion.8 But while taking up, selectively, the language of victimization and exploitation, the law makes it impossible for sex workers to conduct business in an organized and safe manner. Instead, it encourages isolation and secrecy, factors that—t he Supreme Court had pointed out—i ncrease danger. The law’s effects are difficult to see and document. Criminal lawyers and sex workers report that the law is, as of this writing, rarely enforced. Indeed, the Vancouver police chief openly stated that his department would not enforce the new provisions of the 2014 law,9 and since Vancouver has the country’s most visible street trade, this announcement had broader implications. As of October 2015, the law’s legitimacy and impact on police practice had become even more tenuous, when the Conservative government was soundly defeated at the polls and replaced by the Liberal party, which had voted against the law when it was introduced. During the summer of 2017, the ruling Liberals held consultations with sex worker groups and others, but if there is a plan for a new law, it has not been discussed in public. On the ground, sex workers report an increased use of the trafficking provisions (which can apply to situations formerly covered by the “living off the avails” pimping statute), not only to lay charges but also to disrupt sectors of the industry employing migrant women, with some dozens having been deported as a result of anti-trafficking investigations. The purpose of this chapter, however, is not to give an authoritative account of what the law is now or how law enforcement agents including immigration and municipal inspectors have continued to police and punish sex workers by working around the prostitution law. The

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purpose is to reflect on feminist political activity around sex-work law. In order to do that, it is necessary to begin in the 1980s, when prostitution law reform first gained national feminist attention.

Feminist Involvement in Prostitution Law in the 1980s: A National Voice In the early 1980s, as part of the rising “violence against women” movement, the issue of pornography gained much visibility in feminist circles, in Canada as in the United States. The Liberal government of the day, unwilling to enter waters that were controversial among both feminists and party members, decided to use the tried- and-true tactic of the national expert committee to gauge opinion and postpone action. A special committee was formed to gather evidence, hold hearings across the country, and recommend legislative changes. That was already a major task, given the then heated debates among feminists and others about pornography, violence against women, freedom of speech, and so on; but this committee was also entrusted with the equally daunting task of proposing changes to the criminal laws governing prostitution. Known as the Fraser Committee after its chairman, the expert national body was convened in 1983. At the time, much feminist energy was then going into attempting to redefine the “harm” of pornography in a gendered direction, but the issue of prostitution had little visibility in Canadian (or in American) feminist circles. As a matter of fact, many feminist groups (such as the one I belonged to, in Toronto) started to think about their position on prostitution only when their input into the Fraser Committee hearings was solicited. For decades, in Canada (as in other countries), prostitution had been constructed in the public arena not as a deeply gendered issue (as it is today) but rather as primarily a matter of urban nuisance and the policing of disorder. In 1978, the Supreme Court decision in R v. Hutt told police officers that they could no longer arrest street-based women for soliciting—as they had long done—unless the soliciting was proven to be “pressing and persistent.” This judicial move caused a veritable frenzy among police chiefs and city leaders, many of whom were in any case undertaking “moral clean-up” campaigns in inner cities using

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tactics similar to those famously used, later on, by New York City mayor Rudy Giuliani.10 Thus, when the Fraser Committee received its dual mandate, it was assumed that in regard to prostitution only street soliciting laws needed to be examined. And street soliciting, although not completely de-gendered, was generally subsumed under the “broken windows” popular criminological frame. At a time when Canadian criminal justice policy was still largely dominated by expert evidence (in contrast to later populist symbolic uses of criminal law), the Fraser Committee’s highly publicized and well-f unded cross-country hearings prompted feminist groups who had already expressed an interest in pornography/obscenity law to also think about prostitution. Most groups had little, if any, existing policy to guide their presentations. Thus, one established group with close ties to the governing Liberals, the Canadian Advisory Council on the Status of Women, made the legally bizarre suggestion that all street soliciting for any purpose, not just purchasing sexual services, ought to be criminalized.11 Sex workers themselves lacked a national organization, a major handicap when a national committee is convened. They were represented by two small local groups, the Vancouver-based Alliance for the Safety of Prostitutes and the Toronto-based Coalition for the Rights of Prostitutes. Both of them advocated decriminalization, but their voices were weak. Most interesting, in retrospect, was the appearance, on her own behalf rather than representing a group, of well-k nown feminist law professor Constance Backhouse. What she presented by way of a recommendation was an early version of the Swedish/Nordic approach—which had not yet been invented even in Sweden. Her recommendation was that all purchases of sex should be subject to criminal penalties, including those transactions taking place in private (for example, escort work). This took the committee quite by surprise. In their report, they treated Backhouse with the same respect as every other witness, but they were clearly shocked that a law professor would contemplate abolishing the distinction between public disorder and private transactions. The committee stated that if Backhouse’s proposal were implemented, “society would need a repressive form of morals police to enforce such a broadly based prescription,” taking it for granted that no liberal legal system could possibly countenance such invasive

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policing.12 (Canada does not have the same “right to privacy” jurisprudence as the United States, but in 1968 major reforms to the Criminal Code had been carried out, operationalizing Prime Minister Pierre Trudeau’s famous principle that “the state has no place in the bedrooms of the nation.”13) With the development of the Nordic law still to come, Backhouse thus looked to the Fraser Committee like an oddball, an isolated feminist. That outlier status was confirmed as the country’s most powerful and representative group, the six-hundred- member coalition National Action Committee on the Status of Women (NAC), made the organization’s views known. For NAC to have any official views, its national convention had to produce them, given its character as a national coalition of women’s groups. Thus, work had to be done well before the Fraser Committee hearings. Now, generating a unified position on sex-work law was a monumental challenge. NAC’s member groups ranged from the YWCA and the women’s committees of the major Protestant denominations to small socialist-feminist activist collectives such as the one to which I then belonged, Toronto’s International Women’s Day Committee (IWDC). I was one of a handful of IWDC members who attended NAC’s 1983 convention in Ottawa and helped to ensure (in part through clever use of floor microphone tactics learned from the trade union movement) that NAC took a position in favor of decriminalizing prostitution. The resolution was carried—a lthough my own sense was that many, probably most, of the thousands of women belonging to NAC through organizations such as the YWCA would be unhappy with the resolution. But policy was policy. NAC thus prepared a brief to the Fraser Committee that laid out two possible tracks—one, decriminalization, and another, more realistic one, that reformed the law in a less coercive direction. The brief is no longer publicly available, unfortunately, but the Fraser Committee cited it at great length and gave it a great deal of weight. According to the summary given in the Fraser Report, NAC first asked for the repeal of the soliciting law and “in the alternative” asked that the existing law—which as mentioned earlier had been seriously weakened by the 1978 Hutt decision—should not be restored to its previous strength. Second, NAC asked for the repeal of the anti-brothel (“common bawdy house”) laws, stating that, “in the alternative” the law should be modified to allow prostitutes to work out of their own

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homes. NAC finally recommended that the street nuisances associated with soliciting should be dealt with by local regulation, not criminal sanctions.14 Much to the surprise of decriminalization feminists such as those in my Toronto group, the Fraser Committee ended up taking up, in a modified manner, NAC’s idea about legalizing indoor, small-scale sex work. They suggested that an exception to the anti-brothel law should be made to legalize one or two women working out of an apartment (though this would have required municipal licensing reforms not within the control of the federal government 15). It is very likely that NAC’s by no means predictable position in favor of decriminalization was an important factor in the decision of the expert committee to issue this controversial recommendation. As it turned out, however, before the Fraser Committee had issued its voluminous report, the Liberal government that had brought it into being was voted out of office and replaced by the Progressive Conservative government of Prime Minister Brian Mulroney. The committee’s recommendations were predictably ignored. Parliament moved instead to pass a street soliciting law that was truly draconian, banning “all communication in a public place for the purpose of prostitution.”16 This law was scrutinized by the Supreme Court in 1990, but this was a “Reference” case—that is, a question posed to the Supreme Court by government, directly, not by way of a criminal appeal—and thus governments controlled the evidence and the arguments, with sex workers and their supporters being reduced to the role of interveners (“amicus,” in the United States). Although the two women judges then on the Supreme Court concluded that the soliciting law was overbroad and suggested that municipal regulation, not criminal law, should be deployed to regulate the nuisances associated with street soliciting, the majority upheld the draconian law (Reference Re ss. 193 and 195 of the Criminal Code of Canada, 1 SCR [1990]). In the 1990s and into the new century, governments came and went, but legislative action on prostitution was never a priority for anyone other than sex workers themselves. Sex workers never formed a strong national organization, and feminist allies of sex workers saw their political capital weakened by the rapid decline of NAC and (later) the rise of Nordic model ideas, which became popular among feminists and

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other sectors. The notion of defining prostitution as inherently exploitative and criminalizing all customers regardless of intent or behavior remained contested. But as NAC weakened, for unrelated reasons, without any other national organization taking its place, there was no arena in which feminists could speak with one another and contemplate a compromise policy aimed at minimizing the harm being done to female sex workers by the laws. And in the absence of strong national voices, there was no reason for governments to act. Thus, matters stood for many years, until two well-prepared constitutional challenges came to be mounted in the early years of the twenty-first century, one in Toronto and one in Vancouver.

The Bedford Constitutional Challenge to the Laws: The Political Effects of Litigation Strategies and Practices The challenge that eventually reached the Supreme Court originated in Toronto and was conducted primarily by Alan Young, a law professor from Osgoode Hall Law School with experience in constitutional rights challenges to moralistic laws (legalizing medical marijuana was the major item on his curriculum vitae). Young had previously represented Teri-Jean Bedford after she was charged with “keeping a common bawdy house” (that is, a brothel) in the 1990s.17 That defense effort proved unsuccessful, not surprisingly, as Young’s main argument was the claim that the bondage “dungeon” run by Bedford did not actually offer sex: “you can get sex much cheaper,” Bedford exclaimed at one point in the proceedings.18 The trial turned Bedford into a minor local celebrity, but she had little involvement with organized sex worker or feminist groups. Of the three plaintiffs, only Val Scott had a significant history of collective political work and leadership. When preparing his case, Young made an effort to reach out to the main Toronto sex worker advocacy group, Maggie’s, which prompted many internal discussions; but the very next day he sent Maggie’s a memo that outlined his strategy. Beyond that somewhat unilateral gesture, he appears to have made little effort to make his work accountable to either that organization or any of the other groups led by sex workers that existed across the country.

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Young’s heroic-lawyer-against-Big-Brother approach stood in sharp contrast to the situation in Vancouver. There, sex-work issues had gained unique prominence in the 1990s, in large part as a result of a series of murders, most of them of street-based sex workers, many of them Indigenous, murders that were only superficially investigated but turned out to be the work of a particularly nasty serial killer. However, even before the nationwide outcry about police disrespect for murdered sex workers that followed in the wake of charges being belatedly laid, Vancouver’s progressives were unusually well prepared for constitutional litigation through the work of a remarkable poverty-law organization with the odd name of “PIVOT Legal Society,” which has long played a key role in improving conditions and minimizing legal risks for Vancouver’s marginalized people including its large drug-user community. PIVOT had worked with street-based workers to launch a constitutional challenge in the early 2000s. But the PIVOT-led challenge was halted by a judge’s negative ruling on the question of standing (since the women in whose name the appeal was launched had not been recently convicted). If the Vancouver challenge had gone forward first, rather than the Toronto-based one, it would have been accountable to the only semi- organized street-based sex worker community in the country (by contrast, Toronto’s Maggie’s is led mainly by non–street workers19). The Vancouver challenge would certainly have ensured that the agency of all sex workers, street-based and not, featured prominently in the legal arguments—whereas Young, in Toronto, though personally a libertarian and so opposed to the sex-worker-a s-essential- victim narrative, stuck to the more legally promising strategy of highlighting the additional harm to sex workers posed by the criminal laws.20 The fact that Young did not have any structure of accountability to anyone besides his formally identified three clients is significant. Local groups such as Maggie’s or Vancouver’s PIVOT, if allowed to have significant influence on the litigation strategy, would have insisted on emphasizing agency, dignity, and choice, but on feminist rather than civil libertarian grounds.21 As it was, PIVOT had to squeeze their feminist decriminalization arguments into an intervenor (amicus) brief, while the Toronto group, Maggie’s, was denied intervenor status.

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The Feminist Coalition versus the Women’s Coalition: Intervenor Politics, Competing Voices As just mentioned, the only parties in the Bedford litigation were the government of Canada on one side and the sex workers represented by Young on the other. Without further discussion of Young’s own litigation strategy, which had little or no institutional or discursive connection to Canadian feminist organizing, this section will cover the intervenor arena. And the first thing to note here is the notable absence of the national group with the most storied history of gender rights litigation and intervention, the Women’s Legal, Education and Action Fund (known as LEAF). LEAF had its heyday from the mid-1980s to the mid-1990s, when equality-seeking legal reform groups funded by a federal “Court Challenges Program” litigated or sought intervenor status in existing litigation, in order to obtain authoritative interpretations of the equality rights newly enshrined in the 1982 Charter of Rights and Freedoms. (U.S. readers should note that Canadian law has no hierarchy of strict versus intermediate scrutiny; all equality rights including gender are on the same level.) The LEAF intervenor brief in the 1992 R v. Butler case, for example, which resulted in a Supreme Court decision that essentially rewrote the obscenity law under a new, “risk of harm” rationale, was very widely read and widely debated; subsequently Catherine MacKinnon claimed that the LEAF brief had greatly influenced the Supreme Court’s decision even though it was not directly cited.22 From the mid-1990s onward, LEAF’s influence diminished a great deal, due to internal organizational factors and to broader judicial trends; and it had to radically downscale its activities after 2006, when the Court Challenges funding program was abolished. But nevertheless, LEAF continues to exist and to carry out its mandate of representing women’s interests in constitutional litigation. The fact that LEAF did not seek intervenor status in Bedford, either on its own or together with other groups, is thus significant: if LEAF had intervened, its position would have been respectfully received at all levels of litigation. And if LEAF had intervened alongside PIVOT and other, less visible feminist decriminalization groups, the Court decision may or may not have been different, perhaps, but the LEAF position would certainly have had significant impact on the subsequent public discussion about

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what might replace the now invalid laws. LEAF did not issue a statement explaining its decision to not intervene and did not respond to e-mails I sent inquiring, but feminist lawyers one step removed from LEAF told me that LEAF did not seek to intervene because the issue of prostitution law reform was simply too divisive. The vacuum created by LEAF stepping back was first filled—though belatedly, after rather than before the trial stage—by a coalition of women’s groups that described itself as “abolitionist” (in the sense of believing that coercive law can be used to try to abolish prostitution altogether) and that supported the Nordic model, in which all purchases of sex, whether in public or in private, are criminalized. A Vancouver activist, Lee Lakeman, who had previously alienated many feminists around the country by attempting to exclude trans women from working in her organization, drew on her existing network of radical feminists to form the “Women’s Coalition,” as they called themselves. A key spokesperson for this coalition was Janine Benedet, a feminist law professor long known for her support of the Nordic model. A long list of groups, many very small, signed up for this coalition; but only a few had prior national visibility. One was the Canadian Association of Sexual Assault Centres—though several important sexual assault centers broke with their national organization on this issue. Another important group was the Canadian Association of Elizabeth Fry Societies, whose longtime leader, Kim Pate, was and remains the country’s leading voice for incarcerated women, and who had previous to participating in this coalition enjoyed a good reputation with sex workers and with all progressives fighting against harsh criminal justice policies. Pate and her colleagues had long worked with the Native Women’s Association, a venerable aboriginal feminist organization with considerable political capital among both feminists and criminal law justice activists.23 Not surprisingly given these prior links, the Native Women’s Association, long a strong voice against overcriminalization, joined with Pate in the Women’s Coalition, despite the fact that the Coalition’s brief describes all sex workers as “prostituted women” (para. 9). The brief did not include the critiques of criminalization and the white patriarchal state that are the bread and butter of both of these organizations. Instead, the intervenor brief claims that sex workers’ voices may not be reliable because women may not know that they are being pimped (para. 16) and—most out of sync with the general views

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of both of these organizations—that it is not the state, through its laws, that harms women, but rather men (para. 38).24 The Women’s Coalition brief did not appear to have much effect on either the Ontario Court of Appeal decision or the Supreme Court judgment; but it did have the unintended effect of mobilizing feminists strongly opposed to the victimism of the brief and its apparent abandonment of the feminist critique of coercive state power that some of its leaders, especially Pate, had always articulated.25 The leader who quickly tried to pull together a competing coalition of feminists supporting sex workers’ dignity and agency was a Toronto feminist long known as “Jane Doe” (due to a long-ago sexual assault case and subsequent lawsuit against the police that need not detain us here). They called themselves the “Feminist Coalition,” in an obvious move to challenge the claims implicit in the “Women’s Coalition.” An important feature of this hastily convened coalition (which did not obtain intervenor status at the Supreme Court level, not surprisingly, given the lateness and hastiness of their effort) was to enable feminist groups and organizations who dissented from the Women’s Coalition pro–Nordic model view to publicly oppose a position that had been presented as feminist unanimity. In terms of legal content, the views expressed in their brief were very similar to those found in several other intervenor briefs, from PIVOT and from civil liberties groups and HIV/ AIDS groups (that is, criminal laws are dysfunctional and harm women; a harm-reduction approach is preferable to coercion when managing the risks of sex work).26 But in relation to feminist politics, it made a difference that the pro–Nordic model Women’s Coalition became unable to claim to represent Canadian feminism. Thus, neither coalition was particularly successful, in legal terms, but the maneuvers around the intervention process showed that in relation to the most important gender-related law reform process in years, Canadian feminism was revealed for all to see as sharply divided. It became widely known that there were two competing coalitions of women’s groups seeking intervenor status—and neither included LEAF, long the leader in feminist constitutional litigation. That combination of silence and division stands in sharp contrast to the united women’s voice that (for public purposes, at any rate) the NAC had produced for the benefit of the Fraser Committee in the 1980s. We will return to the lessons one might draw from this story of

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dueling feminist coalitions in the conclusion—but for now it is necessary to briefly summarize the Supreme Court judgment and then go on to explain the new criminal law that was put in place in 2014 to replace the invalidated old laws.

The Supreme Court’s Pragmatist Approach to Sex-Work Laws

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At the outset I briefly described the Supreme Court’s rationale for striking down the three main prostitution laws, namely, the principle that the state, through its laws and policies, ought not to cause additional harm or pose additional risks to already vulnerable groups. This “state harm” principle (which has roots in medical practice and public health) had earlier led the Court (as previously mentioned) to side with provincial health authorities funding a safe-injection site in Vancouver, in defiance of federal drugs legislation. Now, in the Bedford case, if the Court had seen its role as proto- legislative (as it did in the 1992 obscenity decision in R v. Butler), it might have gone on to describe in positive terms the harm-reduction, pragmatist approach to regulating sex work that one can see operating in certain jurisdictions, most notably New Zealand. The New Zealand model, which legalizes brothels that have four or more employees but leaves independent sex workers and small cooperatives unregulated and unlicensed, had been lauded by several of the plaintiffs’ expert witnesses (for example, Australian political scientist Barbara Sullivan), so the Supreme Court was well aware of its existence. Perhaps the Court did not see its role as recommending any particular replacement for the invalidated laws, so the judgement was brief and modest. And yet, the judgment, while not explicitly advocating a pragmatist, harm-reduction, sensible regulation approach to sex work, models or performs a pragmatism that could be said to be typically Canadian. In a relatively short and unanimous decision, the Court steadfastly refuses to even ask whether sex work is inherently exploitative and, relatedly, avoids mentioning feminism. Eschewing all ontological and moral discourses, the Court’s stance is best seen in a passage in which the Court criticizes a government lawyer’s incautious claim that if sex workers encounter danger on the street, that is their

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own fault for choosing a risky profession. Against this view, the Court could have deployed the radical feminist discourse of sex workers as total victims lacking in agency—but instead, the Court quietly de- genders prostitution law and reiterates the doctrine about the state’s duty to not cause harm, as follows: It must be remembered that prostitution—t he exchange of money for sex—is not illegal. The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chose to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.27

That the brothels law, the “living off the avails” (procuring) law, and the anti–street soliciting law were all invalid because they prevented workers from taking elementary precautions to screen clients and ensure their own safety was the crux of the decision, substantively; but the way in which this was expressed, by means of a homey analogy featuring a nonsexual and de-gendered counterfactual, did more than ridicule the government’s lawyers. The rhetorical strategy quietly shifted the debate away from the conflicting ontologies of gender and of money that have long haunted sex-work law, toward classic Canadian policy pragmatism. In keeping with this pragmatism, the Court further reminded Canadians that striking down the law does not necessarily create a legal vacuum, as the legislature is by no means prevented from “imposing limits on where and how prostitution may be conducted. . . . The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach” (para. 165). This understated call for a sensible regulatory system is, of course, not the total decriminalization sought by Young and by many sex workers. But it is worth contrasting the Court’s homey, pragmatist rhetoric with the way in which other participants, from the federal government to the feminists of the Women’s Coalition, made grand generalizations about the nature and moral status of sex work by speaking consistently not of sex workers but of “prostituted women.”

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The New Law: Party Politics Trump the Supreme Court’s Pragmatism

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Instead of heeding the Supreme Court’s gentle shove in the direction of the kind of middle-of-the-road evidence-based regulatory strategies that would flow from the bike-helmet law approach, the Conservative government chose to take an absolutist approach. The 2015 law criminalizes every act of purchasing sex (in keeping with the Nordic model) but, quite out of keeping with the Nordic approach, adds a strong law-a nd-order overlay by also criminalizing all advertising for the rather broad category of “sexual services” (which arguably includes much more than prostitution). Advertising sexual services on the Internet was not banned in the original Swedish law (indeed, such advertising is implicitly encouraged, since brothels are not legal). The Canadian Conservative government also chose to re-criminalize women themselves in certain circumstances (soliciting near a park or playground), a move in complete contradiction with the Nordic (and radical feminist) narrative of sex workers as victims. Neither the clause re-criminalizing street-based women nor the anti- advertising provision became well known, however (and remain unknown to most as of this writing28). The information disseminated about the new law was limited almost completely to that first clause, which criminalizes all purchases of sex, often surrounded by press release comments paraphrasing the bill’s preamble—which cherry-pick the radical feminist idea that prostitution is exploitative but bury it in a moralistic de-gendered Christian discourse about the evils of purchasing “sexual services.” A question that many including the present writer pondered was this: Why did the government spend political capital drawing up a new law that was a marked departure from the status quo on the one hand but also, on the other hand, paid no heed to the Supreme Court’s quiet but firm nudge toward pragmatic regulation? Or why did the government not do the normal thing (currently being done by the governing Liberals), namely, kick the can down the road? The Court, when releasing the Bedford decision, gave the government a year to write a new law. An election was looming, and the government could easily have kicked the can down the road by asking for an extension that would

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continue until Parliament recessed for the election campaign. Both the law itself and the scant, mainly word-of-mouth information about the process that is available suggest that the government’s main aim in introducing what was bound to be a controversial law was not to cater to the pro-criminalization feminists represented by the Women’s Coalition (a group that was unlikely to vote Conservative on other grounds) but rather to reactivate the moral conservatives, in Parliament and out of it, who for years had been displeased that neither abortion nor same- sex marriage had been revisited even years after the Conservatives, led by Prime Minister Stephen Harper, achieved an absolute majority, in 2011. A point that differentiates the Canadian Conservative party from the otherwise not dissimilar Republicans of the United States is that, despite being a far-right government known for ditching the Canadian tradition of evidence-based criminal justice policy,29 the Harper government had successfully prevented their morally conservative backbench members of Parliament, over the years, from trying to reverse same-sex marriage or to resurrect a criminal law on abortion. The prostitution issue clearly presented a far safer outlet than abortion for the pent-up moralism of the government backbench, given Canadian polling data. Thus, parliamentary hearings, from which feminists of all stripes were excluded, were largely turned over to evangelical churches and “rescue” organizations who cared about prostitution and saw it in the now popular terms of the international anti-t rafficking movement. The law, described by a government source (not incorrectly) as a “paradigm shift,”30 therefore had as its primary audience the Conservative’s party moralistic backbench and solid voting base—as shown by the hearings in both houses of Parliament, which were unusually stacked and showed unusual rudeness to dissenting witnesses.31 The right-wing moralists whose support the Harper government needed to survive were not the only audience, however. As in other countries, “anti-t rafficking” had by 2014 become a cause for many Canadian mainstream as well as feminist groups and organizations, and the Protection of Communities and Exploited Persons Act catered to these (which otherwise are well outside of the Conservative tent)—a lthough the text that comes closest to representing the Women’s Coalition type of feminism is not found in any of the law’s working clauses, but rather in the preliminary “whereas” clauses:

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Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it; Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity.32

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“Objectification of the human body” and “commodification of sexual activity” are phrases that link anti-pornography feminists with religious conservatives; but, importantly, they do so by sweeping gender power under the rug. What was the feminist response to the law? Some feminists, inside and outside Canada, felt that they had some of their wishes granted: if one went by the government press releases, one might have thought that all male customers but no women workers were now to be criminalized. But ambivalence quickly surfaced, not surprisingly, once people actually read the law. Thus, noted “abolitionist” feminist Kathleen Barry responded to the new law by noting that “The press release [about the new law] from Canadian MPs [Members of Parliament] has twisted a new, very regressive law to look like a gain for women. Please note moderators of this [e-mail] list that this is not a political argument, it is a correction to the misleading press release which announces the law as a feminist gain.”33 However, perhaps due to a reluctance to face “I told you so” reactions from decriminalization feminists such as myself, in response to an inquiry I made about that women’s studies e- mail list comment Barry explained to me, in February 2015, that overall the law is still a gain for feminism, even though it is out of keeping with the Nordic model because under some circumstances street-based workers are re-criminalized. A similar reluctance to openly criticize the new law was found among Canadian feminists who had shared Barry’s views and who remained largely silent after the law’s passing. The Native Women’s Association (NWA), a very significant feminist organization that as mentioned earlier had supported criminalizing customers during the litigation, was notoriously silent. Buried under several layers of hyperlinks, one can find, through the NWA website, a June 2014 press release by a pro-criminalization feminist coalition that gives very lukewarm support to the new law, entitled “New Law Begins to Recognize the Harm in Prostitution.” That press release quotes an NWA

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spokesperson; but the NWA’s own press releases and documents fail to mention the new law. Similarly, the Canadian Association of Elizabeth Fry Societies, which under Kim Pate’s leadership had taken a lead role in the Women’s Coalition, have remained silent since the law’s passing, with their 2015 annual report making no mention of it and their 2013–14 annual report mentioning only their own intervention in the Bedford litigation, not the introduction of the law. For their part, numerous women’s groups and sex worker groups, not to mention many of the country‘s criminal law professors, expressed their criticism of the new law in vocal terms, much along the lines of the failed Feminist Coalition.34 The national feminist groups that had initially supported the Women‘s Coalition, by contrast, went silent after the bill became law. The silence on the part of the Women’s Coalition members probably contributed significantly to the fact that the prostitution law did not become an issue in the election campaign that in October of 2015 led to the defeat of Prime Minister Stephen Harper’s government by the Liberal party, led by Justin Trudeau (son of Pierre Trudeau, who in 1969 liberalized the Criminal Code’s provisions on birth control, abortion, and homosexuality). The new minister of justice and attorney general of Canada is a young female Indigenous leader from British Columbia who undoubtedly has her own views on sex-work laws, given the prominence of prostitution and violence against sex workers in the Vancouver area; but the new government’s plans for sex-work law reform remain a mystery. Other issues are more legally pressing, from rolling back the Harper government’s mandatory minimums and restriction of parole and probation to legalizing assisted suicide and recreational marijuana. The fact that sex-work law reform is not viewed as a pressing item on the government’s agenda can be seen as both a symptom and a cause of the feminist fragmentation and feminist silences that were visible in the dueling feminist coalitions of the Bedford litigation.

Conclusion No matter what happens to Canada’s prostitution law in future months or years, the history outlined here suggests some conclusion. First, one sees that when feminists and other progressive forces focus their

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energies on constitutional rights victories in the courts, neglecting the legislative process, they may be suddenly marginalized by new laws that are difficult to change. Second, in the face of a women’s movement that is divided and unable to project a strong national voice, clever anti-feminist politicians can easily cherry-pick a few feminist ideas to give law-and-order measures a new lease on life—a move that is not Governance Feminism but is arguably governing through or by means of feminism. Finally, and most important, in the absence of a recognized national organization of sex workers, it is nearly impossible for sex workers’ interests to be adequately represented. It is not at all coincidental that during the process that led to the 2003 New Zealand Prostitution Law Reform Act, a national sex worker organization was a key protagonist in the legal reform process.35 If such a national voice does not exist, a strong national women‘s organization that avoids victimism and advocates for sex workers, or at least advocates for the elimination of laws that harm them, could be a temporary substitute, as NAC was in Canada in the 1980s for purposes of the Fraser Committee; but that kind of feminist organizing is only a poor substitute for sex worker activism. In the long run, Canadian feminists of all stripes will have to think about how to create a national arena to publicize, prevent, and denounce anti-women statutes and policies. That sex workers and other marginalized and stigmatized women need to be central actors in such a reconstituted national feminist movement or coalition, if sex-work law is going to be taken up, is a key principle, borne out by the successful New Zealand experience. As it stands, what this chapter has documented is the ultimate failure of all forms of Canadian feminism to wield significant influence on the hugely important field of sex work law—so far.

Notes

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Many people made significant contributions to this chapter. Emily van der Meulen, Kyle Kirkup, Tony Doob, and Hamish Stewart generously shared their knowledge, while Amy Cohen, Prabha Kotiswaran, and Sonia Lawrence gave invaluable comments. 1. My first book, Sex, Power, and Pleasure (Toronto: Women’s Press, 1985), was commissioned by a feminist press to ensure that the “sex debates” then taking place in the United States had at least one significant Canadian book-length contribution.

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In keeping with the tenor of the “sex debates” of the time, sex work is not discussed in the book. For a more academic contribution, see Mariana Valverde, “Beyond Gender Dangers and Private Pleasures: Theory and Ethics in the Sex Debates,” Feminist Studies 15, no. 11 (1989): 237–54. In regard to recent political activity, during 2011–13 I was one of two academics invited to join a sex worker–led group, the Sex Work Policy Group. I am deeply thankful to Val Scott and the other group leaders for accepting me into their group and sharing their wisdom. 2. While other areas within the sex-a nd-t he-law field have experienced harmonization across countries and even continents (e.g., same-sex marriage), sex- work policy has seen widely diverging laws and policies emerge in otherwise similar countries. See Mariana Valverde, “The Regulation of Sex and Sexuality through Criminal Law,” in The Oxford Handbook of Gender, Sex, and Crime, ed. Rosemary Gartner and Bill McCarthy (Oxford: Oxford University Press, 2014), 230–50. 3. Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. 4. Research shows that criminalizing all customers, along the lines of the Swedish 1999 law adapted for use in many jurisdictions, exposes women workers to additional danger. Although the Swedish government has produced almost entirely propaganda about its innovative law, not independent evaluations, even its evidence shows cause for concern. See, e.g., the careful analysis of the Swedish law in a Norwegian Ministry of Justice and Police 2004 report, Purchasing Sexual Services in Sweden and in the Netherlands. 5. England and Scotland are adopting features of the Nordic model, though in a fragmented manner rather than through a general new law; see Jane Scoular, The Subject of Prostitution (London: Routledge, 2015). 6. See note 5 above, and Jane Scoular, “Criminalising Punters: Evaluating the Swedish Position on Prostitution,” Journal of Social Welfare and Family Law 26 (2004): 195–210; Barbara Sullivan, “When (Some) Prostitution Is Legal: The Impact of Law Reform on Sex Work in Australia,” Journal of Law and Society 37 (2010): 12–39. 7. Andrea Sterling documented the negative effects of the new law (or perceptions of the new law) among independent escorts for an unpublished master’s paper at the Centre for Criminology and Sociolegal Studies, University of Toronto (2015); she and I are currently conducting additional research on how the new law is being interpreted by independent escorts and those who help them carry on their business, such as website administrators. 8. The Conservative government claimed public opinion support for their move to criminalize all purchases of sex; to do so they suppressed the results of their own opinion polls, which showed Canadians were split more or less down the middle on whether to criminalize purchases of sex in the wake of the Court’s decision. Alex Boutillier and Tonda McCharles, “Secret Poll Shows Canadians Deeply Divided on Prostitution Approach,” Toronto Star, July 16, 2014. 9. Wanyee Li, “Vancouver Police to Prioritize Safety over Anti-Prostitution Laws,” Globe and Mail, December 5, 2014. 10. On this, see Deborah Brock, Making Work, Making Trouble (Toronto: University of Toronto Press, 1990), chapter 4.

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11. See Canada Department of Justice, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol. 2 (Ottawa: Government of Canada, 1985) (hereafter cited as Fraser Report). 12. Fraser Report, 2:520–21. 13. The Canadian Broadcasting Corporation has a voluminous digital archive that can be searched for iterations of this famous phrase; see www.digitalarchives.cbc. ca. 14. Fraser Report, 2:529. 15. Justice Minister Mark MacGuigan told the national newspaper of record, at the time the Fraser Committee was set up, that the federal government was interested in developing some “model municipal bylaws” to help cities like Vancouver and Toronto. See Jeff Sallot, “Criminal Code Amendments: Prostitutes’ Clients May Be Charged,” Globe and Mail, June 24, 1983, 1. 16. For more on this, see Brock, Making Work, chapter 6. 17. The decision in that case was R v. Bedford [1998], O.J. 4033. 18. Trial transcript cited in Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton, N.J.: Princeton University Press, 2003), 74–77. 19. In an article available on the PIVOT website, dated April 5, 2013, the writer complains that the litigants in Bedford did not represent street-based sex workers. See “Sex Work Groups from the DTES [Vancouver’s Downtown East Side] Ready to Intervene at SCC,” http://www.pivotlegal.org/sex_work_groups_from_the_dtes_ ready_to_intervene_at_scc (accessed February 15, 2015). 20. What PIVOT’s argument would have been was explained by their legal director, Katrina Pacey, in a panel discussion that I co-organized at the University of Toronto, on January 28, 2014. Law professor Brenda Cossman, speaking in the same panel, also criticized the way in which the Bedford challenge had concentrated on dangers to women, a strategy that in her view would tend to evoke a paternalistic state response, even if that response was not what was sought by the Bedford litigants. 21. In the early 1980s, I was a member of the collective that published the Body Politic, a gay liberation newspaper that was criminally charged under a quasi- obscenity statute. In that situation, the men whose name figured on the indictment resolved to pass the responsibility for instructing their lawyer to a representative community group (the Body Politic Defense Committee). As I recall, the lawyers involved were not happy with this but eventually accepted it. I am not aware of other Canadian constitutional challenges to criminal laws in which the accused have given up control of the case in this manner. In the most famous of these, the Morgentaler abortion case (or rather cases), Dr. Morgentaler chose and instructed his own counsel, though he and his counsel did work closely with the Ontario Coalition for Abortion Clinics. 22. On the “risk of harm” test developed by the Supreme Court in Butler and its relationship to feminism, see Mariana Valverde, “The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law,” Social and Legal Studies 8, no. 2 (1999): 181–97. 23. In recent years, as is the case in Australia, aboriginal issues have become central to Canadian politics, including feminist circles. This is particularly true for

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criminal justice issues. The overpolicing and overincarceration of Black Canadians, by contrast, is generally seen as a city-based issue more than as a national issue. 24. Factum of the intervenor Women’s Coalition, Court of Appeal for Ontario file C52799 and C52814. 25. The organizers of the public forum on the Supreme Court Bedford decision held at the University of Toronto had to contend with a protest, from sex workers, directed at Kim Pate, one of the speakers. They, and their feminist allies, expressed dismay and surprise that Pate would appear to be supporting the Nordic model. A well-k nown aboriginal woman lawyer spoke at that same panel in favor of decriminalization, in contrast to the position officially held by the Native Women’s Association. 26. “Affidavit of Jane Doe,” Supreme Court of Canada file 34788, in possession of the author. 27. Canada (Attorney General) v. Bedford, 2013 SCC 72, para. 87. 28. One informant explained to me (in the fall of 2015) that advertising charges are sometimes “tacked on” to charges under the trafficking law, which was not affected by the Bedford challenge. 29. See Michael Harris, Party of One: Stephen Harper and Canada’s Radical Makeover (Toronto: Viking, 2014); and Cheryl Webster and Anthony Doob, “US Punitivism Canadian Style,” Punishment and Society 17, no. 3 (2015): 299–321. 30. Government of Canada, Department of Justice, Technical Paper on Bill C-36 (The Protection of Communities and Exploited Persons Act), December 2014, http:// www.justice.gc.ca/Eng/Rp-Pr/Other-Autre/Protect/P1.Html. This so-called technical paper is not only ideological but also incorrect: among other things it goes as far as to claim that the law makes lap-dancing a crime. Ottawa insiders point out that a real Department of Justice policy paper would have an author and would specify the author’s branch of the department—t his suggests that the “technical” paper actually came from the Prime Minister’s Office. A more reliable and neutral account of the litigation and of the old and new laws is found in the Library of Parliament’s Legislative Summary of Bill C-36, dated July 18, 2014, and available through www.parl. gc.ca. 31. Teri-Jean Bedford, one of the three plaintiffs in Bedford, was bodily ejected from Parliament when she showed up, complete with dominatrix whip, to express her anger at the new law. 32. The preamble continues as follows: “Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate effect on women and children; whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution” (Protection of Communities and Exploited Persons Act, S.C. 2014, c 25; emphasis added). 33. Comment posted June 2014 to the academic Women’s Studies list WMST-L . Thanks to Emily van der Meulen for bringing this to my attention. 34. See open letter signed by 190 lawyers and law professors dated December 17, 2014, in possession of the author. 35. For the process leading to the New Zealand law, see Gillian Abel, Lisa Fitzgerald, and Catherine Healey, eds., Taking the Crime out of Sex Work: New

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Zealand Sex Workers’ Fight for Decriminalization (Bristol, U.K.: Policy Press, 2010); and see 2008 five-year evaluation of the 2003 law, available through the website of the New Zealand department of Justice website, http://prostitutescol lective.net/wp-content/uploads/2016/10/report-of-the-nz-prostitution-law -committee-2008.pdf.

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