Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, and Substantive Equality in Bedford v. Canada
Stockholm University - Department of Political Science
June 25, 2013
Final version to be published in Harvard Journal of Law and Gender, Vol. 37, 2013
Canada criminalizes anyone who “lives wholly or in part on the avails of prostitution of another person,” and anyone who keeps, controls, or knowingly permits a “bawdy-house” for prostitution. The Court of Appeal for Ontario found that these laws prevented brothel management, escort agencies, bodyguards, or drivers from enhancing the safety and well-being of prostituted persons in indoor locations. This article assesses the evidence relied on by the Ontario courts to strike down the laws, finding that evidence was misrepresented and misevaluated, thus did not support their decision. Empirical evidence shows that prostitution is an unequal practice of sexual and economic exploitation to which prostituted people generally lack real or acceptable alternatives. Pimps and brothel-owners in general make their situations worse, not better. The two invalidated provisions, compared with existing trafficking laws, facilitate prosecution of pimps and other profiteers. By invalidating these provisions, Ontario has exposed prostituted people to predators while protecting their exploiters. Their decisions overturn well-established Supreme Court precedents that shield prostituted people from abusive pimps, and violate Canada’s commitment to promote equality among historically disadvantaged people, such as those in prostitution. Charter principles of substantive equality call for retaining laws that put exploiters — pimps and brothel-owners — out of business, while invalidating any fines or criminal laws imposed on prostituted persons, measures that preclude their opportunities and exit. Civil damages actions on behalf of prostituted people and effective criminal laws against purchase of people for sex would also promote their substantive equality. The Ontario cases are on appeal before the Supreme Court of Canada.
Number of Pages in PDF File: 67
Keywords: Prostitution, Trafficking, Exploitation, Inequality, Canada, Charter, Section 15, Substantive Equality, Intersectionality, Multiple DisadvantagesAccepted Paper Series
Date posted: June 25, 2012 ; Last revised: October 10, 2013
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