The Nordic Model - We May Be Worse Off Than Before...

[Nikki Thomas 23145]

Re: Timing - the challenge was actually launched in 2007, at a time of considerable instability in federal politics. The prospect of a Conservative majority was quite unlikely at the time, but more importantly, there was now a wealth of solid empirical evidence showing the damaging nature of the laws that had not existed during the SCC Reference in 1990. Even Bertha Wilson said that, if they knew what they knew in 2007 back in 1990, the SCC's decision would have been very different (she won't be found being quoted as such, that's just something Alan Young told me in passing when we were in the CBC Green Room together). The internet actually played a big role in this, by showing very clearly how much safer sex work could be when conducted exclusively indoors.

 

The idea of leaving the "status quo" in place pretty much evaporated when the full extent of Robert Pickton's murders was realized. If you disagree, then please, feel free to tell the families of the murdered girls that we should have left well enough alone.

 

Re: Standing - it's valuable to note that a concurrent challenge in BC was underway when this all began, with the same general arguments (as well as a S.15 challenge on the basis of equality, which the Ontario Case did not argue). It was launched by the DTES with Sheri Kiselbach and SWUAV as the applicants, and represented by Katrina Pacey & PIVOT Legal. Because none of the applicants identified as active sex workers, the government challenged whether they had standing. It worked its way up through the courts, and in a lesser-known-but-still-important ruling, the SCC held (also in a 9-0 unanimous decision, in September 2012) that they indeed had public interest standing, and allowed the challenge in BC to proceed. By then, the Ontario case was already going to be heard by the SCC, so it was more of a moral victory than anything else, but the SCC's ruling will likely serve as a precedent should further legal action be taken. This makes the standing issue relatively moot; any challenge to a potential Nordic Approach law will argue that it makes screening clients difficult, which the SCC cited as one of the reasons it struck down the S.213© Communicating Law; a similar challenge, launched by sex workers, is unlikely to run into the same problems as the BC challenge because of these recent precedents.

 

As an aside, even though the case is called "Bedford et al" because alphabetically, Terri-Jean Bedford comes first, Amy Lebovich is the only reason that private standing was granted, because Valerie Scott & TJB were retired when the challenge was launched. She's the only woman in Canada who has been recognized by the court as an active sex worker; without her, this case would fallen years behind, just as the Vancouver challenge did. Despite being the least-visible member of the three applicants, Amy is perhaps the most important sex worker in Canada; we should thank her for what she did for our cause.

 

Re: strip clubs/swinger's clubs/etc - my point was not to examine what the courts have ruled on these sorts of clubs in the past, my point was how a law criminalizing purchase of "sexual services" will inherently be poorly defined, without an explicit discussion of what is or is not a "sexual services". Past precedent is somewhat irrelevant because those precedents were themselves based on laws that have since been struck down; R v Kouri explicitly stated that swinger's clubs were ok because they weren't bawdy houses, but now bawdy houses are legal. Does that mean swingers can legally accept money/dinner/drinks for sex, but men aren't allowed to buy a lady at a swinger's club a drink if he wants to have sex with her (assuming a Nordic Approach law is passed)?

 

Courts don't like ambiguity, and they'll throw out a law that isn't well-defined, which means that Stephen Harper et al will be forced to explicitly tell us what is or is not considered "sex". It's a much bigger minefield for them to walk than it was for Bill Clinton and his definition of "sexual relations" and one has to wonder what impact such a law might have on the filming and distribution of pornography.

 

It's a no-win situation for them to even start having the conversation, so they'll stay as far away from it as possible.

[scribbles 6031]

Just to clarify, especially for Nikki, my comments were not meant to suggest that the harms caused by the outgoing legislation weren't worth challenging. Without contextualizing it within a greater political issue, Robert Picton was a horror of enormous proportions on its own, and I don't think anyone here, especially myself, would suggest those murders were in any way justifiable or excusable.

Don't assume that I was suggesting the status quo is best. I was merely noting that many who were begging for decriminalization before are worried that the victory before the SCC will be worse that the status quo was to begin with. Let's hope it isn't. It would be a waste of the progress made for human rights.

[Nikki Thomas 23145]

My apologies scribbles, I didn't mean to call you out in any way, and on second reading, my post looks especially bitchy on that topic. I withdraw the comment, and wish to rewrite it this way: one of the primary pieces of evidence put forth during the hearings is that Grandma's House, a place where street-based sex workers were permitted to bring clients during the height of the Pickton emergency, was shut down by VPD as a bawdy house. Alan Young successfully argued that the enforcement of this law compromised the safety of sex workers, and that piece of evidence, perhaps more than any other (in Young's opinion) was what convinced the court of the unconstitutionality of the three laws.

 

At any rate, I think we can all agree that decriminalization itself is a noble goal; it's the political BS that comes afterwards (let's call it "recriminalization" for lack of a better word) that's the real problem. The first is a legal issue, whereas the second is a political issue. Shame they're so closely conflated on what consenting adults are permitted to do in private.

[Old Dog 179138]

Just a couple of side notes.... the current Supreme Court of Canada is comprised of 9 judges. The politics of the court appear to be heavily weighted on the conservative side; 7 of the 9 current justices sitting on the Supreme Court of Canada were appointed by Conservative or Progressive Conservative Governments.

 

Six judges (Nadon, Wagner, Karakatsanis, Moldaver, Cromwell and Rothstein) were appointed by our current Prime Minister.

 

One judge (LeBel) was appointed by Chretien.

 

One judge (Abella) was appointed by Martin.

 

The Chief Justice, Beverly McLachlin, was appointed by Mulroney and ascended to the role of Chief Justice under Chretien.

 

The current laws surrounding prostitution pre-date confederation. Prostitution in and of itself has NEVER been illegal in Canada. It has only been the laws surrounding prostitution that have evolved in the past 150 years. The solicitation (1972)/public communication (1985) laws replaced the vagrancy laws that existed since 1759. Brothels and pimping/living off the avails laws have been extant 1759 as well.

 

There has been an appetite for prostitution in Canada for a very long time apparently. We have had the opportunity for the past 254 years to make the trade illegal, and NO government in the interim has made a move to change the status quo.

 

I must also add that the current government has 22 months left in its mandate. An unpopular decision in the next 12 months will linger politically; the current climate sees that 56% of Canadians already believes that the current government has a poor performance rating and 73% of Canadians do not see good performance (very poor, somewhat poor and average combined).

 

Just some political food for thought.

[cyclo 30131]

... my point was how a law criminalizing purchase of "sexual services" will inherently be poorly defined, without an explicit discussion of what is or is not a "sexual services"... Courts don't like ambiguity, and they'll throw out a law that isn't well-defined, which means that Stephen Harper et al will be forced to explicitly tell us what is or is not considered "sex".

 

Nikki, thanks for the comments you've added to this thread. It's been very valuable to hear from someone who has been closer to the case than any of us have been.

 

The issue you've raised of defining "prostitution", "sex" or "sexual services" in any new prostitution laws is an interesting one. While some of these words are used in the Criminal Code's prostitution laws, it's worth noting that none of these terms are actually defined in the Criminal Code. The legal understanding of these terms is based upon the "common law" precedents which have developed in previous cases. Much of our law is in fact common law and it doesn't have a lesser status than "written" laws.

 

The courts, including the Supreme Court, haven't expressed any difficulty in understanding or applying these terms as legal concepts when hearing prostitution cases dealing with bawdy houses, public solicitation, living off the avails or procuring etc. They shouldn't have any difficulty in any future legislation either, regardless of how prostitution is regulated. In fact there's a good argument to be made that they shouldn't try to write a definition of things that are already understood and have useful meaning in common law. You can cause more harm than good.

 

While our prostitution laws are broke, it's not due to a lack of definitions. As the Supreme Court stated in a previous case the problem has been "(the) bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself." Added to that is the recent decision which shows how these laws cause serious harm to individual citizens while only achieving minor good for society in general.

[Guest Ou**or**n]

Many interesting thoughts so far in this thread.

 

I still feel the Harper conservatives will bring in some form of reactionary law based not on rational harm reduction but rather on ideology. I personally am liberal or red tory (depending on the times) almost purely because I hate gov't by ideology - right or left.

 

I agree that the laws will be vague, broad and likely ultimately unconstitutional. I also sadly agree with Nikki that they will likely be packed into an omnibus bill so as to virtually eliminate any serious debate while the conservatives go around making all their talking points on their promotion of the 'safety of women'.

 

I find this quite saddening but I guess its the reality of politics. Maybe in another 5-10 years when whatever stupid laws get passed are struck down that we can settle down and start having a real discussion of prostitution and harm reduction. While I am completely in favour of the rights of individual women to control their own bodies including using them for paid sex, I am fully cognisant that there are many dark sides to prostitution. The abolitionist side and ex-sex worker advocate groups exist for a reason. I would not want to see Canada bring on to itself many of the issues such as an increase in human trafficking that some countries have experienced with large scale brothels.

 

However all this would fall into the scope of rational discussion, something the conservatives are completely incapable of doing. They already have ignored rational discussion on issues like mandatory sentencing, crime reduction and the environment.

[scribbles 6031]

Just a side thought, but my understanding of how omnibus bills work is that tweaks to existing legislation can be made, but wholesale changes (ie new criminal law) aren't within the scope of an omnibus bill. If I'm not wrong, that means that we aren't likely to see criminalization if the transaction from either direction slipped unobtrusively into an omnibus bill. What we're more likely to see is a change in the wording of whatever existing trafficking laws we have to try and include non-trafficking sex work.

[LeeRichards 177238]

6 pages phew !!!! done.

 

Thanks folks I have learned Allotta reading your input. That I am serious about. I have always understood the bare basics of the world I play in ....the world that has made me a much happier man.....but never taken or had the time basically to really understand things.

 

That being said...... my input being the "deep" debater that I am..... is...... ;

 

Sex is good, sex is fine, doggy style or 69, just for fun or getting paid, everyone likes getting laid :)

 

Besides......

 

[Guest N***he**Ont**y]

Agreed you are a "Master Debater!"

[Cato 160314]

There was a good article on this in the Ottawa Citizen yesterday, describing the model as driven by a particular kind of radical feminist ideology that portrays heterosexual males as aggressors and females as invariably victims, so it delegitimises women's options to offer sexual services on the grounds that women would only do so under some kind of constraint, physical, economic, social, etc. On the basis of ideological assumptions about what women's behaviour would necessarily be, proponents of the model decide that the exchange of sex for money can never be a freely chosen act on the woman's part. But this conclusion is based on a belief system not founded on empirical evidence.

Feminist paternalism? How's that??

[drlove 37202]

If the Conservatives do attempt to criminalize the purchase of sex, how will this affect the average hobbyist? Will the laws actually be enforceable, or for that matter enforced at all? I've always liked the fact that although current prostitution laws are flawed, outcalls are legal, which happen to be my preference. If things change, well... let's just say I wouldn't want to find myself on the wrong side of the law, so to speak - in terms of any fallout, be it publicity, detrimental effects on my career etc..

[fortunateone 156618]

it is difficult to say. Will the law enforce that law as stringently as they have been enforcing the bawdy house or living off the avails laws? As in, will they turn a blind eye to the criminal actions of clients because they know that their time and energy is better spent on real crimes?

 

Because that is what they have been doing for decades regarding those laws. I think what many sex workers are saying is they want to continue to work the way they are already working without it being illegal, and because doing it illegally there is always the very real threat that someone unhappy with her about something can expose her and get her evicted or exposed to friends, family and other tenants. With the laws overturned, she will continue to do what she is already doing, and now live without the fear of someone threatening to expose what she is doing at that location.

 

\

I think there are a number of things that used to be illegal that governments eventually delete from the criminal code because they are stupid laws, or just laws no one is actually enforcing, or because society has changed in some way so that the thing itself is no longer a moral threat.

 

Take a look at Colorado today. Would anyone ten years ago have said that any US state, including California, would have retail stores selling pot to non medical use customers?

 

The reason they could make that next step, is because someone made the step to provide it and research it for medical use. That makes society more accepting of it in the abstract. Which leads to them being more accepting of it for general use. When the challenge hit the media, things were buzzing, but at the same time, many people were finally educated about the fact that it is legal work, and that the conditions imposed on the workers wouldn't be tolerated by any other group of workers.

 

Maybe no one is ready for a retail shop to open on Main street, but I doubt if anyone is able to open a Pot Shop on Main Street Colorado either. No doubt they have restrictions and limits as to who can come into the venue and make a purchase, just as there will be restrictions and limits as to who can enter a massage parlour or independent sp incall.

[Studio 110 by Sophia 150333]

If the Conservatives do attempt to criminalize the purchase of sex, how will this affect the average hobbyist? Will the laws actually be enforceable, or for that matter enforced at all? I've always liked the fact that although current prostitution laws are flawed, outcalls are legal, which happen to be my preference. If things change, well... let's just say I wouldn't want to find myself on the wrong side of the law, so to speak - in terms of any fallout, be it publicity, detrimental effects on my career etc..

 

 

I really understand the sensitive need to be cautious with your career. And that has to be your first priority of course. So you will do what is right for you.

But I think if this is going to be the way, I feel it is going to be enforced much the same way it is now. Meaning, if you are not booking with agencies/indy sp that have "negative" cloud hanging over them, such as minors, drug activity, 24 hour traffic etc...I do not see them having a sting-op on every SP and client. It would be impossible. I think this is designed to go after the human trafficking, enticing/hiring minors, exploitation from pimps etc.

I mean as it is now incall are illegal, but here I am....meanwhile in the same city as me, 2 agencies(incall) were busted as they had minors and drugs involved. So as long as there a real bad apples to look for, then I am feeling rather secure. Mind you, I am always making sure I am being quiet and discrete , making sure ID is checked, and carful who I work with( no drugs or drama).

So for the hobbyist, outcall or incall, then KNOW who you are booking with. making sure they have a good rep, no shady aura, big "cat houses with lots of ladies available, respectable and clean.

 

Time will tell...I know how I am going to vote in next election, lol...

[Guest Miss Jane TG]

Re: Standing - it's valuable to note that a concurrent challenge in BC was underway when this all began, with the same general arguments (as well as a S.15 challenge on the basis of equality, which the Ontario Case did not argue). It was launched by the DTES with Sheri Kiselbach and SWUAV as the applicants, and represented by Katrina Pacey & PIVOT Legal. Because none of the applicants identified as active sex workers, the government challenged whether they had standing. It worked its way up through the courts, and in a lesser-known-but-still-important ruling, the SCC held (also in a 9-0 unanimous decision, in September 2012) that they indeed had public interest standing, and allowed the challenge in BC to proceed. By then, the Ontario case was already going to be heard by the SCC, so it was more of a moral victory than anything else, but the SCC's ruling will likely serve as a precedent should further legal action be taken. This makes the standing issue relatively moot; any challenge to a potential Nordic Approach law will argue that it makes screening clients difficult, which the SCC cited as one of the reasons it struck down the S.213© Communicating Law; a similar challenge, launched by sex workers, is unlikely to run into the same problems as the BC challenge because of these recent precedents.

 

The standing issue is never a moot one nor is the SCC decision ruling referred to is a binding precedent for "individual" sex workers. In fact, the standing issue is a case by case analysis. I have actually searched this issue in depth and I believe that the courts have a public duty to ensure that anyone who bring a challenge to an enacted legislation should have a legal standing. To open the court doors for everyone will only bring a chaos to the judicial system. Moreover, when the courts grant a public interest standing to an "x" and "y" individuals, the negative results of such proceedings would be binding to all of those potentially affected. Therefore, a public interest standing should be really reserved for entities truly representing various public groups' stakes.

 

As I said sex workers organizations, could potentially convince the courts of the public interest standing depending on the weight they carry in the society. Unfortunately, the sole individuals carry only their own weight.

 

I might have misunderstood the context of your reference to the issue as being moot. But, I thought that the mootness is in reference to both "individual" sex workers and sex workers organizations.

[fortunateone 156618]

There is discussion on these topics on rabble.ca, click on babble, (you do have to sign up), and under both feminism topic and sex worker topic headings.

 

What i would like to see on that site is 2 dozen or more sex workers posting on the issue, to take the wind out of the chatter from the people who don't read the stats and research, but want to impose nordic model onto everyone.