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Monday, 23 December 2013

Sex trade work in Canada will become safer. Supreme Court of Canada supports public health principles

Happy holidays to all.   

Sex trade workers in Canada are celebrating a gift issued by the Supreme Court. By striking down the existing Canadian laws on prostitution is the Supreme Court signaling that messages on public health are making it into the judicial system?  In the decision of December 20  the court  ruled specifically that three sections of the Criminal Code are an infringement of rights under s 7 of the  Canadian Charter of Rights and Freedoms  and the court was explicit in stating that the code infringes on their personal safety. 

Moreover the court speaks to changing legal principles over the past 20 years that allow for a revisiting of previous legal decisions, a marker for seeing the law as a reflection of a changing society.

At the heart of the decision is the danger and risk that prostitutes are placed in and their efforts to mitigate these risks as being defined in criminal code as illegal.  The court stipulated that Parliament does have the right to limit where and how prostitution can be conducted as long as it does not impinge upon the constitutional rights of prostitutes.  Given the recognized balance required, the government was provided with one year to correct the current situation.

Prostitution has not been illegal in Canada, where an exchange of money is made between consenting adults for the purposes of sex.  It is the provisions associated with prostitution that the criminal code imposed that have come under challenge.  Given that prostitution was legal, those engaged in the profession were being placed in danger by the Criminal Code.

In the unanimous decision written by Chief Justice Beverly McLachlin, the court reviews how each of the three sections precludes prostitutes from reducing their risk and enhance making their work unsafe.  The decision does not speak to the risk, nor even include demonstration that real risk existed.  The decision speaks from the perspective that safety was potentially compromised and includes fundamentals as negotiation of condom use as a safety issue.  In this, the court follows its previous recent decisions that acknowledge safety and health as an inherent good to be protected.

Perhaps there is hope that further legal actions will take aim at political stances which have inherently put individuals at risk, including by not limited to inequitable incarceration of subpopulations, personal use of drugs and policies that benefit those with resources and compromise those without such as pharmacy reimbursement plans for employees.  

Kudos to the Supreme Court, and legal watchers should read the fine detail of the decision as it lays down the foundation for future direction. 

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