Will all hell break loose now that the Supreme Court of Canada has struck down three prostitution offences? No. The laws remain in force for a year, giving Parliament time to decide if and how to pass new laws. It is still an offence to engage in street solicitation, live off the avails of prostitution or run a common bawdy house.
The court's decision leaves untouched most of Canada's prostitution laws. It is still a criminal offense to pay a minor for sex, engage in trafficking or attempt to procure someone to engage in prostitution. Other criminal code offenses, including offences related to sexual offences, extortion and organized crime can also be used to charge those who exploit sex workers.
More than 90 per cent of prostitution-related charges in Canada have been under the now-impugned solicitation law. This law has never been used to protect sex workers from exploitation.
Sex workers, including minors, are far more likely to be charged and convicted under the solicitation laws than johns. But in a welcome development earlier this year, the Winnipeg police announced a new police team would work with street level sex workers. Rather than laying solicitation charges, this team would get to know the workers' concerns and then be able to work together to target exploitative johns and pimps. So non-enforcement was already the status quo in Winnipeg.
Living off the avails and bawdy house charges are uncommon so the loss of these offences will not have much impact.
The Supreme Court of Canada was right in striking down the three prostitution offences. The expert evidence presented to the court established these laws prevent sex workers from taking steps to protect themselves from risks. It also did not distinguish between those exploited and those who would increase the safety and security of sex workers.
What should happen next? First, Parliament must determine why such laws are needed. Do we criminalize prostitution-related activities because paying for sex is immoral? Or are the laws intended to protect those exploited in sex work? Are criminal laws the best way to deal with the so-called nuisance aspects of street level sex work?
Some advocate adoption of the Swedish model, which makes it a criminal act to pay for sex. In other words, only johns but not sex workers, commit an offence. In theory, the threat of a charge should dry up the demand. Canada has never criminalized the exchange of money for sex, so this would be a new direction in Canadian law. The Swedish model is to obliterate all sex work, based on the notion that payment for sex is immoral.
Another option is not to pass any new laws, but rather to encourage police to work with the criminal laws that are more specifically aimed at curbing exploitation, such as the human trafficking laws. Developments such as the Winnipeg police team dedicated to working with (not against) sex workers are a step in this direction. Other laws could be changed, such as immigration policies permitting women who are trafficked into Canada for sex work to stay here permanently rather than being deported.
Laws regulating, rather than prohibiting, aspects of sex work will also be contemplated. Under New Zealand law, municipalities can establish red-light zones and other countries have licensing regimes for bawdy houses.
The City of Winnipeg already charges a very hefty fee to license erotic, body-rub parlours and escort services, but, other than restricting location, it has done little with this bylaw outside of generating revenue.
We have to recognize criminal and other laws will not do much to end exploitation of sex workers. If we want to get serious about helping those who are exploited, we would develop more primary services, including safe places to eat and sleep, better access to job training and to addiction services.
Finding out from sex workers what they need is the conversation we should be having.
Karen Busby is professor of law and the director of the Centre for Human Rights Research at the University of Manitoba