Marcus McCann explains why Canada’s landmark sex-work ruling, while laudable, has little to say about sexual autonomy.
The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter…. [T]he basic theory underlying the Charter [is] that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life.
The above passage is not from Canada (Attorney General) v Bedford, a December 20 Supreme Court decision striking down three sex-work related provisions from the Criminal Code. Rather, it’s a passage from Justice Wilson’s concurring reasons in R v Morgentaler (1988). Justice Wilson articulates a zone of private decision making — basic choices about bodily integrity — about which the state ought not to intervene. Notably, similar arguments about bodily integrity and sexual autonomy are largely absent from Bedford.
Practically speaking, there is a lot to applaud in this decision. Soon our sex working friends and neighbours will be less beholden to the courts, less likely to be harassed by police, and more free to protect themselves and each other from predators. Or, at least, that’s the idea. I say “soon” because the decision was suspended for one year, to give Parliament a chance to write new sex work laws.
There is no doubt that sexual autonomy is engaged when it comes to the state’s regulation of sex work. This is familiar terrain. Consider, for example, the following aphorisms: the state has no place in the bedrooms of the nation; or, my body, my choice, or even — to quote a kinky motto that encourages sexual exploration within limits — safe, sane and consensual.
But the Supreme Court’s decision doesn’t touch on the principle of sexual autonomy. Rather, it cleaves to a tighter, narrower logic. The court found that the anti-sex work laws were largely intended to prevent nuisance and neighbourhood disruption, but that their effect was to endanger the lives and safety of sex workers. Each of the laws was therefore either grossly disproportionate to its objective, or else overly broad. Safety, not sexual autonomy, was the governing principle.
The central metaphor in Bedford is, perhaps oddly, bicycling. It would be wrong for Canada to allow citizens to ride bicycles, but forbid them to wear helmets. If a law makes a legal activity more dangerous, it is suspect. In Canada, sex work is a legal activity, but related prohibitions made it less safe, so the Supreme Court struck down those prohibitions. The Supreme Court, however, said nothing about whether sex work itself should be legal.
There is a procedural reason why arguments about sexual autonomy weren’t raised squarely in Bedford. The three elements of section 7 of the Charter — life, liberty and security of the person — are analytically distinct. An earlier Supreme Court decision from 1990 found that two of the sex work prohibitions did not violate the liberty interest. Therefore, re-introducing such arguments in Bedford would have been difficult to do, and so they were left out.
As a consequence, last week’s Supreme Court ruling likely will have very little impact on the legal situation of other sexual minorities, like swingers, pornographers, and kinksters, whose choices are not always respected by courts. It may, however, have some impact on a future challenge to Canada’s polygamy law, since arguably one effect of the anti-polygamy law is to drive Mormon fundamentalist women underground and leave them more vulnerable to abuse.
But perhaps most surprisingly, if Parliament introduces new laws that directly criminalize sex work, then the logic of Bedford will have very little to add to the next legal fight about prostitution. Rather, lawyers likely will have to return to Justice Wilson’s wise words in Morgentaler and start from scratch.
Marcus McCann is a former newspaper editor. He is now a JD student at the University of Toronto Faculty of Law @mmccnn