Part 1: Bedford meets Backpage.com

The NDP critic, Francoise Boivin, seemed rather ambivalent about the Bedford v. Canada (Attorney General), 2012 ONCA 186 [Bedford] decision, which was released by the Court of Appeal of Ontario in April of this year:

“I’m not even sure that having the decision — having to rewrite some aspect of the Criminal Code — will have that much of an impact in the short term,” she said. “I think it’s still something that we need to educate a lot of people [about]. There’s something else at the core of this, so it’s not just a criminal case. It’s social. There’s so many aspects to it.”

What is underlined by Boivin in her statement is that prostitution is not a legal phenomenon, but rather a social phenomenon. Courts reverse decisions, laws change and political regimes come and go, but the “world’s oldest career” persists. We human beings do not change, even if our ways of connecting with each other have. My two-part series will highlight the Bedford decision within a larger context, specifically the increasingly dangerous entanglement between technology, specifically the Internet, and human sex trafficking.

Bedford: What it Means

Much attention has already been drawn to the Bedford decision by my colleagues at TheCourt.ca and elsewhere online and in print. Essentially, the landmark decision would allow sex-trade workers to conduct business in homes and brothels and hire security so long as the relationship is not exploitative. Soliciting prostitution on the street, however, would remain illegal, according to the Court of Appeal. Prior to the decision, much of what would allow a woman to practice her trade was not legal, even though prostitution was technically legal in Canada. (There are no provisions in the Criminal Code, RSC 1985, c C-46, or elsewhere in law that prohibits prostitution in this country.)

Of the three provisions in the Criminal Code that sets up parameters around the sex trade, the Court of Appeal held that two of the three impugned provisions were unconstitutional and had to be struck down: Section 210, which prohibits the operation of common bawdy-houses; and Section 212(1)(j), which prohibits living on the avails of prostitution.

Section 212(1)(j) encompasses more than just pimps. Anyone who profits from prostitution would be considered engaging in a criminal activity. The Court of Appeal, however, interpreted this section in a very narrow way. If there exists a non-exploitative commercial relationship between the sex-trade worker and other people (such as security guards hired for the purpose of offering protection), the sex-trade workers’ Section 7 Charter right could be infringed. That is, the Court of Appeal held that Section 212(1)(j) only applies to those who live on the avails of prostitution in circumstances of exploitation.

Public Place?

Section 213(1)(c), however, was upheld by the Court. According to that section, communicating for the purpose of prostitution in public remains illegal. That would prevent prostitutes from offering their services in public, and particularly on the streets. The words of the provision are:

213(1) Every person who in a public place or in any place open to public view

…

(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

As the Court reminds us at paragraphs 14 and 15, the Criminal Code has a set of useful definitions in place to guide our interpretation of this provision. The Criminal Code defines “public place” to mean

“any place to which the public has access as of right or by invitation, express or implied (s. 197(1))”.

Furthermore, s. 213(2) elaborates on “public place” as also including

“any motor vehicle located in a public place or in any place open to public view.”

Together with s. 197(1), s. 213(2) concerns a real, or physical, space. 

The Dangers of Privacy

Without even considering how technology facilitates “communication for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute,” some immediate concerns can be raised. Angel Wolfe, who claims that her mother, Brenda, was one of the first victims of the serial killer, Robert Pickton, objected to the decision in Bedford in April. Aligned with Sex Trade 101, an organization that helps women leave the sex-trade profession, she argued that by keeping the women away from public streets, “those girls get hidden and they get beaten by the ‘johns.’” Furthermore, the legalization of brothels would make it more difficult for police to get warrants for sweeps; these sweeps could lead us to illegal child trafficking and abuse. Allowing prostitution in a public arena may offend some of our social sensibilities, but, according to Wolfe, the increased transparency would keep some women safer and children away altogether.

On the other hand, the appellants in the case argue that sex-trade workers are better off in terms of personal safety and dignity if they could work indoors and off the streets. In privately-owned property, including brothels, safeguards can be put in place to make sure that their security can be protected, such as by hiring security guards. So, contrary to what Wolfe and others may believe, the Bedford decision does not merely sweep the dirt under the carpet. The debate about prostitution, and how to make it safer for women, including how to get them out of the profession when they desire to do so, will surely continue. As an interim decision, Bedford is basically a pause in the debate; recently, the Supreme Court of Canada granted leave to appeal to this case.

How Backpage.com Could Shape the Debate about Bedford

In anticipation for next week’s post, which will link the Bedford decision to the increasing problem of human trafficking around the world, we should turn briefly services like backpage.com. Backpage.com is an online marketplace; it contains an ‘Adults’ section, which lists ‘Adult jobs’ and ‘Escorts’ among other sub-categories. It is often compared to Craigslist’s advertisements for escort services, which were taken down by the company after mounting pressure from Congress, state Attorney Generals and the public in the United States. Last year, a lawsuit was filed against the parent company of backpage.com, Village Voice Media, alleging that they knowingly promoted child prostitution on their website. Attorney Generals from almost every state in the United States have banded together to ask backpage.com to eliminate their adults’ services sections. Nicholas Kristof, a well-respected lawyer and journalist, makes the claim that backpage.com is the biggest forum for sex-trafficking of under-aged girls in the United States.

Backpage.com operations extend beyond the fifty United States. It has operations in Canada’s major cities too. Partly because prostitution has always been legal in our country, whereas it is only legal in one state in the United States, Canadian lawmakers have not put pressure on backpage.com – yet. But the Bedford decision should force us to grapple with its real implications: first, could online advertisements for prostitution be considered in a “public space,” under s. 213(1)(c) of the Criminal Code? Stemming from this question, we will tackle the question of how our legal regime can better fight human trafficking, specifically human trafficking of under-aged girls, in the next part of this series.