Academic journal article Review of Constitutional Studies

Sex Work by Law: Bedford's Impact on Municipal Approaches to Regulating the Sex Trade

Academic journal article Review of Constitutional Studies

Sex Work by Law: Bedford's Impact on Municipal Approaches to Regulating the Sex Trade

Article excerpt

Introduction

There is no question that the laws regulating sex work in Canada reveal a conflicted, ambivalent, and at times arbitrary attitude towards the exchange of sex for money. With the recent Ontario trial decision determining that the Criminal Code provisions prohibiting bawdyhouses, communication in public for the purposes of prostitution, and living on the avails of prostitution violate the Charter of Rights and Freedoms, (1) lack of clarity, at least in the short term, is likely to increase. (2) What is clear is that municipal lawmakers, in reviewing current bylaws and considering prospective ones that regulate the sex trade, would be well advised to do so in contemplation of the reasoning adopted by the trial court in Bedford.

In Bedford, Justice Himel found that the bawdyhouse provisions (section 210), (3) the living on the avails provision (section 212(l)(j)), (4) and the communication for the purposes of prostitution provision (section 213(1)(c)) (5) violate section 7 of the Charter and could not be saved under section 1. (6) She also found that section 213(1)(c) unjustifiably violates section 2(b) of the Charter.

The reasoning in Bedford gives rise to three interrelated principles that municipal lawmakers should take note of when considering bylaws aimed at regulating sex work. First, Justice Himel recognized that determining the constitutionality of these Criminal Code provisions requires recognition of the violence faced by sex workers. Second, she confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through its courts, have deemed fundamental to a just society. Third, she recognized that in a just society a government is not entitled to jeopardize the health and physical safety of sex workers for the sake of reducing public nuisance. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. Municipal lawmakers will need to consider the impact that their bylaws have on the safety of sex workers. They will need to recognize that the community's interest in reducing public nuisance will not justify zoning and licensing bylaws that aggravate the already dangerous working conditions of many sex workers in Canada.

This article is divided into three parts. Part I briefly explores the regulative context in which sex work in Canada currently operates. Part II discusses the Bedford decision, illuminating these three significant principles expressed by Justice Himel's reasoning. Part III suggests the implications of these principles for municipal bylaws intended to regulate the sex trade. The aim of this article is to articulate the implications of the reasoning in Bedford for the constitutionality of municipal laws. My objective is not to articulate a specific municipal regulatory scheme. A detailed argument with the level of specificity necessary to respond to the local needs and factors at play in a particular municipality should be devised in collaboration with all of the stakeholders in a community and in consideration of the specificity of that community. This is the advantage of a furcated system of law. Local laws should be developed at the local level and responsive to local interests. Moreover, detailed recommendations regarding the municipal regulation of sex work should be developed in full consultation with the sex workers operating in the community in which such laws will apply. The objectives of this piece are more modest: to demonstrate how the principles identified in Bedford also apply to municipal law and to argue that, at the local level, in revisiting current regulations or developing new ones (in response to decriminalization for example), these principles require municipal lawmakers to accommodate the safety interests of the sex workers in their communities.

Sex trade in a community gives rise to competing interests and difficult social pressures. …

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