When the Supreme Court of Canada declared three major prostitution laws unconstitutional in December, Valerie Scott called it the best day of her life. Now, Scott and other advocates for safer conditions for sex workers are concerned the ruling may have been futile.

Scott is one of the three sex workers who challenged the prostitution laws in Bedford v. Canada. The court struck down laws prohibiting brothels, living off the avails of prostitution, and communicating in public with clients because it said they force sex workers into dangerous situations.

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Sex worker advocates Valerie Scott and Amy Lebovitch embrace after learning Canada's highest court struck down the country's prostitution laws in Ottawa on Dec. 20, 2013. (Adrian Wyld/Canadian Press)

But the court’s decision has become a hollow victory for Scott and her colleagues. Parliament has been given 12 months to rewrite the laws, and has expressed interest in legislation many sex workers say would do nothing to improve their working conditions and could even make them worse.  

MacKay told CBC in January the government intends to draft legislation that would help sex workers transition out of the industry, and instead punish pimps and johns. This is what’s known as the Nordic model of prostitution, and in essence it makes it legal to sell sex but not to buy it.

The Nordic model is already enforced in three European countries: Sweden, Norway and Iceland. French MPs have approved a bill that will penalize those paying for sex, but the bill must still pass the Senate before it comes into play. 

Brenda Cossman, a law professor at University of Toronto, said it has created many of the same problems sex workers in Canada want to avoid.

"Those on the streets are working in very, very risky conditions because they go further into remote areas,” Cossman said, describing the situation in Europe. “They have to do the negotiation very quickly. It doesn’t give them any time to assess risk.”

Norway’s Ministry of Justice did a report on sex work in 2004 that indicates the preferred clients have moved to the internet, but the dangerous ones stayed on the streets.

Currently in Canada, most sex workers screen their clients before they see them. They record their legal name and address. They know their phone number. But under the Nordic model, Scott said clients will be afraid to identify themselves to sex workers.

“We’ll have to accept calls from blocked numbers. We won’t know who we’re seeing,” said Scott. She calls this a gift to sexual predators.

Pending legislation

Last week, MacKay told a crowd in Halifax that Parliament will introduce the bill "well before" the December 2014 deadline, and just needs to communicate with police and provinces to finalize the process. 

Scott told CBC that to her knowledge, no sex workers have been involved in the decision-making process.

'They think it’s the only way they can retain some element of control over the sex industry.'- Emily Van der Muelen

“MacKay is only interested in consulting with those whom seek to prohibit sex work, under the guise of ‘saving us.’ It makes it crystal clear that this federal government is solely interested in its own political safety and could [not] care less about our lives,” Scott said.

Emily Van der Muelen agreed the Nordic laws would be hazardous to sex workers. “It appeals to the government because its fits with their ‘tough on crime’ agenda,” said the Ryerson University criminology professor.

“They think it’s the only way they can retain some element of control over the sex industry.”

The Department of Justice was asked to comment for this article, but said it would not answer questions until the legislation is tabled.

“We have nothing to add to the comments we’ve already made, and developments on this issue will be announced in due course,” ministry press secretary Paloma Aguilar wrote in an email response to CBC News.

'Do not rewrite the laws'

Scott said the ideal situation would be for the government to do nothing.

"Do not rewrite the laws. They did not rewrite the same sex marriage law, they did not rewrite the abortion law. But they know that we’re not a great huge amount of people — and we’re politically not a great cause to get behind in terms of vote-getting.”

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A prostitute talks to someone in a car in central Stockholm. (Claudio Bresciani/Associated Press)

Alternatively, she points to New Zealand, which has been called the most progressive country in the world for sex work. Scott and a number of other advocates for sex workers interviewed by CBC News said they would like to see a version of the system used in New Zealand and New South Wales implemented here in Canada.

The Prostitution Reform Act was brought into effect in New Zealand 2003, and set up a framework to protect the human rights of sex workers. Under the Act, sex work is considered normal and legal work. The workers are protected by labour laws that promote their health and safety, and a tribunal hears disputes with brothel owners.

The brothels pay licensing fees that are the same as other businesses such as coffee shops — about $650 a year. Oftentimes the brothels are run by sex workers or former sex workers themselves. According to the Ministry of Justice in New Zealand, the number of sex workers in the country has not increased since decriminalization.

Advocates for safer conditions for those working in the sex trade would like to see a similar approach in Canada.

“The women who are doing the work should be the ones that are able to obtain a licence. We should be able to rent a place together and work together,” Scott said. “That’s what safety is, being in proximity with each other.”

Local control

Municipalities also have the power to make laws surrounding sex work in New Zealand, covering things such as health-and-safety and zoning restrictions, which Cossman said is a superior form of regulation.

She’s concerned that due to the way the Supreme Court of Canada set up its ruling, there will be no provision for control of sex work by municipalities through localized bylaws and labour laws. Instead, the Supreme Court made it Parliament’s responsibility to revamp federal laws, setting the stage for more criminal legislation surrounding prostitution.

“The Supreme Court didn’t say anything about really needing to decriminalize prostitution,” said Cossman, and instead has given the government leeway to recriminalize it with new laws.

She worries that if the Nordic model of regulating prostitution is enacted, constitutional challenges surrounding sex work will start all over again. Advocates for sex workers would need to spend years gathering evidence again to show the new laws are harmful to sex workers.

“That to me is a horrifyingly tragic period of time where we’re basically saying sex workers are the guinea pigs and let’s see if it makes it any safer for them,” said Cossman.

“It means that we will have to spend the next 10 years massing evidence of robberies, beatings, rapes and murders,” Scott added. “How many bodies have to pile up?”

Clarifications

  • This story originally reported that the Nordic model of regulating prostitution is enforced in France. To clarify, French MPs have approved a bill that will penalize those paying for sex, but the bill must still pass the Senate before it comes into play.
    Feb 07, 2014 12:10 PM ET