Getting Screwed (28 page)

I caught up with Young by phone one day in July 2014. He was holding court with his students and said he had only twenty minutes to talk. Young explained that he had decided in 1990 that he would systematically challenge every consensual crime under the Canadian criminal code — as an academic exercise. But it wasn't until police caught Robert Pickton and “were digging up bodies on the farm” that he turned his attention to the laws against adult prostitution. “I felt it was time to take on the prostitution laws,” Young says. “The criminal law is a blunt instrument; it's not a good panacea for social problems.”

Around the same time, Valerie Scott and her organization, now renamed Sex Professionals of Canada (
SPOC
), were searching for a lawyer who would take on a legal challenge on a pro bono basis. One day, Young came across
SPOC
's newly posted website, found Scott's phone number on it, and called her. “We were looking for him and he was looking for us,” Scott says.

By 2006, Scott and Terri-Jean Bedford had agreed to be plaintiffs in a constitutional challenge to Canada's prostitution laws. By then, however, both women had pretty much retired from sex work — Scott was forty-eight and Bedford forty-seven — and they needed to find someone who was still doing sex work and willing to go public as the suit's third plaintiff. Scott, who has long wavy brown hair, strong cheekbones, and a dancer's poise, was making a living rehabilitating sick and injured wildlife at wildlife centers in and around Toronto, but she continued to devote most of her spare time to sex workers' rights activism. Given the enormous stigma of working in the sex trade and the fact that the families and friends of many sex workers have no idea how they earn a living, Scott knew that finding a third plaintiff who was willing to weather the publicity around the case would not be easy. She decided to approach a twenty-seven-year-old sex worker by the name of Amy Lebovitch, who was already active in
SPOC
and had been in the public eye to a certain extent as a spokeswoman for the organization.

At the time, Lebovitch, a sultry blonde with blue come-hither eyes, was working as an escort in Toronto. She had grown up in Montreal, the offspring of middle-class Jewish parents, and had left home at the age of eighteen because of family problems that, in an interview, she said she would rather not talk about. By the time she walked out, she had gone to the Canadian equivalent of community college for two years and was thinking of going on to a four-year university. Without a place to live or means to support herself, Lebovitch began doing sex work on the streets of Montreal.

“I needed money quickly and it just made sense,” she says. After a few months, she moved to Ottawa, about two hours west of Montreal, and began taking classes at the University of Ottawa. She also began doing mostly indoor sex work. Occasionally, when she didn't have money to advertise, she would go back on the stroll.

“It's not the safest way to work and I didn't enjoy it,” she says. “But without criminalization, without the fear of the police and not being able to properly screen clients, it could be safe. We need to make it safer so people are able to have a conversation with someone before getting into the vehicle.”

A year later, Lebovitch moved to Toronto and began taking social work classes at Ryerson University. And that's when she met Valerie Scott. “I did an interview with her about
SPOC
for one of my social work papers,” Lebovitch says. “We talked for hours, and it was sort of like this world opened up in my mind about activism and organizing. I was really intrigued about the idea of meeting and working with other sex workers, so I emailed Valerie and said, ‘I didn't tell you at our meeting but I am a sex worker and I'd like to come to your meetings.' ”

Lebovitch joined
SPOC
in 2003 and became a spokesperson for the organization. Her family, of course, had no idea she was doing sex work, and she wasn't about to tell them. “I didn't think the little publicity I did would get to Montreal, so they wouldn't see it,” she says. “And they didn't.” But all that changed a few years later, when Valerie Scott approached her about being the third plaintiff in their case.

“Alan [Young] did a pretty good job explaining the magnitude of
what might happen,” Lebovitch says. “But I don't think I truly appreciated how big the impact could be.”

As the three plaintiffs worked with Young and others to prepare the paperwork for the lawsuit, a subcommittee of Canada's House of Commons released a report that examined the country's laws against prostitution and concluded that they did more harm than good. Prostitution was “above all a public health issue,” the subcommittee concluded, and it recommended that the Canadian government engage in a “process of law reform” and move toward a more pragmatic, decriminalized approach that recognized the importance of prevention, education, treatment, and harm-reduction measures for people involved in selling sex.
¹⁵

“The 2006 report was the most important in a series of government reports that came out [on the issue of Canada's prostitution laws],” Lowman says. “It spelled out the one thing that all the parties agreed on — that the current laws are unacceptable.”

In 2007, Alan Young filed the constitutional challenge, which argued that Canada's prostitution laws violated sex workers' charter rights to liberty and security of the person and that these charter violations were not in accordance with the principles of fundamental justice (as set out by the charter). The lawsuit also argued that the communicating law violated sex workers' rights to free expression and that none of these violations were justified in a free and democratic society.

In September 2010, Ontario Superior Court Justice Susan Himel ruled that all three laws violated the rights of sex workers to safety and security and that they could no longer be used to arrest people involved in sex (except in cases of underage prostitution and trafficking). Canada's conservative government appealed the ruling, and in a March 2012 decision, the Ontario Court of Appeal agreed with Himel on the bawdy house law but did not strike down the laws against living on the avails of prostitution and muddied the language of the living-on-the-avails law. Young's team appealed the ruling, essentially kicking the ball up to the Supreme Court. As it proceeded through the courts, the Bedford case (named after Terri-Jean Bedford, the first plaintiff in the case) stirred up a hornet's nest of publicity, thrusting its three plaintiffs into the national
media glare. The families of Valerie Scott and Terri-Jean Bedford were already aware of the two women's occupations. Scott says that when she came out to her family, her mother was upset, but mostly because of concern about her daughter's safety. Indeed, Scott, whose family is of Scottish ancestry, attributes her fighting spirit to her mother, who was a schoolteacher and set up the very first home for battered women in New Brunswick “in the days when people didn't want to talk” about domestic violence. And while Scott has a son (whom she raised as a single mother), he was grown by the time she mounted the constitutional challenge. She says he is proud of his mother's activism and accepted her livelihood a long time ago. “He's fine with it,” she says. “He was raised to be fine with it.”

While all three women were mocked in the media, the publicity surrounding the case exacted the biggest toll on Amy Lebovitch. Sometime after the Court of Appeal ruling, her family connected the dots, and in 2012, decided to cut all ties with her. “My last name is not that common,” Amy says.

In June 2013, the Supreme Court heard arguments from both sides of the case, including dozens of witnesses who testified about the pros and cons of criminalizing prostitution. On December 20 of the same year, the court issued its momentous ruling, striking down all three laws governing Canada's sex trade as being in violation of sex workers' right to security. In a unanimous seventy-one-page decision, Chief Justice Beverley McLachlin wrote, “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. . . . [The prohibitions] do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing
dangerous
conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”
¹⁶

The night before the ruling was due, Amy Lebovitch says she couldn't sleep. “I was in an Ottawa hotel room waiting for the verdict, and in my mind, I was moving around all the possibilities of what might happen,” she says. “But one of those possibilities was not that we would win.”

When the Supreme Court announced its decision, Lebovitch said it
felt like a dream, “very emotional and shocking.” But reality soon set in. The court had suspended its ruling for one year to give Parliament time to respond, and officials in the conservative ruling party soon made it clear they had no intention of allowing prostitution in Canada to be decriminalized.

They made good on that threat. In early December 2014, the Canadian Parliament passed a law that prohibits the purchase of sex (akin to the Swedish model); bans the sale of sex near a playground, school, or day care center; and prohibits anyone from directly profiting from commercial sex. The law essentially makes it illegal for any sex worker to hire a bodyguard, driver, or business partner, much as the previous living-on-the-avails law had done. In a new twist, the legislation also bans the advertising of sexual services, although a sex worker would not be prosecuted if she advertised herself. (The sale of sex itself also is not prohibited per se.) But anyone who posts a prostitute's ads on websites or in newspapers such as Toronto's
NOW
(which had eleven pages of sex-related ads in a 2014 issue) could face jail sentences and fines.

Joy Smith, the conservative
MP
(member of Parliament) who cosponsored the new legislation, says the law is designed to curb the demand for commercial sex by criminalizing buyers and penalizing pimps and traffickers. “I'm against criminalizing the prostitutes,” she said in a July 2014 phone interview. “This bill recognizes that prostitution is an unsafe and violent thing, and it requires that $20 million be put in place to help with exit services.”

Smith contended that more than 98 percent of Canadians involved in prostitution are victims and only 1 percent are doing it by choice. However, a number of Canadian studies contradict her claim and suggest that, for many sex workers, the decision to do sex work is a rational economic decision.
¹⁷
Many of these women choose sex work over minimum-wage jobs in the service sector and see themselves not as victims but as entrepreneurs.

In our interview, Smith also claimed that the majority of Canadian prostitutes begin sex work when they are underage. Her assertion is undercut by several studies showing that the average age of entry among
both street and indoor prostitutes in British Columbia is between eighteen and twenty-two.
¹⁸

Smith is certain the new legislation will withstand a court challenge. Some researchers and sex worker advocates, however, say it simply reproduces all the safety and security problems for sex workers that caused the Supreme Court to strike down the previous laws. And the ban on the purchase of sex will violate Canada's Charter of Rights and Freedoms in a completely new way as well. “Section 15 of the charter guarantees equality, but when you have two consenting adults involved in a sexual transaction in which only one of them will be penalized, you have a classic case of inequality and discrimination,” Lowman says.

Advocates for sex workers agree that the new law will simply force sex workers from the relative safety of their homes or brothels into spaces that are less safe. “They will go where the clients are, but because they are being criminalized, the clients will want to be less visible. So sex workers will be forced into those clandestine, in-the-shadow spaces where sex work is less safe,” says Jenn Clamen, thirty-eight, a community mobilizer for Stella, a Montreal-based sex worker advocacy group run for and by sex workers. Clamen, a longtime advocate for sex workers' rights, also teaches part-time at the Simone de Beauvoir Institute, a college of Concordia University that studies feminism and issues of social justice. Clamen says the new law will inevitably expose Canada's sex workers to more violence. “It means they will have to deal with the same kind of thing that was demonstrated with the Pickton [murders],” she says.

Alan Young agrees. “By criminalizing the purchase of sex, the government will make it impossible for sex workers to move indoors. Johns are not going to go indoors and be sitting ducks for law enforcement. They're going to circle around with their cars in the dark,” he says. “So the new law will create more problems, more violence, and result in the one outcome that not one Canadian wants, which is a burgeoning street prostitution problem.”

Advocates say the conservative government is deluded if it thinks that prostitution can be eradicated by criminalizing buyers; this didn't work in Sweden and it won't work in Canada. “Women decide to work in the sex
industry for a variety of reasons, whether it is to pay their bills, support their children, get an education, or support their drug habit,” Clamen says. “These women will continue to work in the industry, but they will be more likely to be involved in unsafe situations.” The new legislation ignores all the reasons why women and men work in the sex industry, she says. “If they were really concerned about prostitution, the government should be targeting issues like poverty, lack of education, drug use,” Clamen says. “But the new law doesn't do any of that.”

Clamen says Canada's sex worker community is disheartened by the new legislation but determined to fight it. At some point, someone will challenge the constitutionality of the new law in court, she says, and Canada's disparate sex work community will band together to support that challenge.