scholarly journals Decriminalizing Domestic Violence and Fighting Prostitution Abolition: Lessons Learned From Canada’s Anti-Carceral Feminist Struggles

2021 ◽  
Vol 10 (2) ◽  
Author(s):  
Gillian Balfour
Keyword(s):  
Domestic Violence ◽  
Sex Work ◽  
Sex Workers ◽  
Lessons Learned ◽  
Indigenous Women ◽  
Supreme Court Of Canada ◽  
Liminal Space ◽  
The Supreme Court ◽  
Potential Risks ◽  
Carceral Feminism

This article offers a cautionary tale for efforts to decriminalize domestic violence through a retrospective analysis of Canadian feminist legal activism to decriminalize sex work. Both domestic violence and sex work are contested terrains of activism, litigation, and scholarship and have come up against the disparate views of criminalization as necessary to protect women from violence, versus criminalization as compounding women’s potential risks for violence. Through the example of Canadian feminist jurisprudence in R v Bedford, wherein the Supreme Court of Canada recognized the endangerment of women as resulting from the criminalization of sex work, I explore the liminal space following this decision, and how regressive legislation was introduced to re-entrench carceralism in the breach of a seeming feminist victory. My focus is on how carceral feminism continues to occupy the liminal space as a force of colonial violence, further endangering Indigenous women. I draw linkages between several violent murders of street-involved Indigenous women and the severing of allyship among feminists, sex workers, and Indigenous women over the potential decriminalization of sex work. Finally, I suggest that opposition to the decriminalization of sex work is successfully argued by an emerging force of carceral feminism: neo-abolitionist feminists who have appropriated a politics of abolition and, yet, may have deepened carceralism in the lives of Indigenous women.

scholarly journals Mis/representation & Silence: Gendered Sex Work Discourse in the London Free Press

2015 ◽  
Vol 23 (2) ◽  
pp. 61-82
Author(s):  
Nathan Dawthorne
Keyword(s):  
Supreme Court ◽  
Sex Work ◽  
Sex Workers ◽  
Supreme Court Of Canada ◽  
Free Press ◽  
Public Discussion ◽  
Conservative Government ◽  
The Supreme Court ◽  
Canadian City ◽  
Gendered Stereotypes

In December 2014, despite the Supreme Court of Canada finding Canada's prostitution laws unconstitutional, the Conservative government passed a bill criminalizing the buying of sex and the advertisement of sex for sale. Sex work has a long history as a hot-button topic, and it continues to remain newsworthy throughout the country. This public discussion in some contexts has privileged certain lobbyists and so-called advocates, disregarding or distorting the voices of sex workers themselves. This territory is starkly heteronormative, reinforcing gendered stereotypes and naturalizing certain types of heterosexual behaviour while ignoring a spectrum of other realities. By analysizing depictions of sex work published for 2013 in the London Free Press, a politically centre-right newspaper printed in a midsized Canadian city, this paper provides analysis of articles about sex work in the local-regional context of London, Ontario (Canada). Exposing a Foucauldian rarefaction of discourse, the analysis works to unveil ideological underpinnings, fleshing out a distorted gendered discourse. 

scholarly journals The Constitutionality of the New Sex Work Law

2016 ◽  
Author(s):  
Hamish Stewart
Keyword(s):  
Supreme Court ◽  
Sex Work ◽  
Sex Workers ◽  
Negative Impact ◽  
Supreme Court Of Canada ◽  
Advocacy Groups ◽  
The Supreme Court ◽  
Policy Objectives

In this article, the author considers the constitutionality of Canada’s new law on prostitution: Bill C-36. When the new sex work law was first introduced into Parliament, a number of advocacy groups and commentators argued that it was unconstitutional because of its failure to respond to the concerns raised in Bedford v. Canada, a case where the Supreme Court of Canada struck down the old sex work law on the ground that its negative impact on sex workers’ security of the person outweighed its nuisance abatement objective. This author agrees that Bill C-36 may be unconstitutional, but for a different reason. The new sex work law adheres to the constitutional norms invoked in Bedford by making use of two novel policy objectives: discouraging sex work and reducing the danger of sex work to sex workers. In practice, however, these objectives are likely to conflict with one another. As a result, Bill C-36 is an incoherent piece of legislation that may be unconstitutional for creating arbitrary and grossly disproportionate effects on the security of the person of sex workers.

Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence

2013 ◽  
Vol 22 (2) ◽  
pp. 21
Author(s):  
Dana Phillips
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Sex Workers ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Downtown Eastside ◽  
The Supreme Court

In 2012 the Supreme Court of Canada issued itsdecision in Canada (AG) v Downtown EastsideSex Workers United Against Violence (SWUAV).1Th e case centered on whether or not thoseinvolved in protecting vulnerable sex workershave standing to challenge the criminalizationof prostitution-related activities on their behalf.SWUAV represents a signifi cant break with previousjurisprudence on standing: it saw the Courttransform its vision of public interest standing,viewing it for the fi rst time as an access to justiceissue.

scholarly journals Sex Work and the City

2021 ◽  
Vol 6 (1) ◽  
pp. 6-13
Author(s):  
Helen Roitberg
Keyword(s):  
Sex Work ◽  
Sex Workers ◽  
Sexual Exploitation ◽  
State Regulation ◽  
Indigenous Women ◽  
Women's Bodies ◽  
Public And Private ◽  
Sexual Services ◽  
The City ◽  
Ongoing Project

Bill C-36, or the Protection of Communities and Exploited Persons Act, which was introduced in Canada in 2014, made the purchase of sexual services illegal. To the end of eliminating sex work, Bill C-36 rests on the premise that sex work is inherently exploitative, and that sex workers and their communities are harmed by the exchange of sexual services. Considering that Indigenous women are overrepresented among sex workers and disproportionately victims of severe violence, this paper examines the goals of Bill C-36 in conversation with Canada’s ongoing project of colonialism. This paper demonstrates that Bill C-36 upholds the systemic devaluation of Indigeneity by which Indigenous women’s bodies are rendered deserving of violence, and by which this violence is normalized and invisibilized. Rather than protect ‘victims’ of sexual exploitation, Bill C-36 relies on the colonial stereotypes of the Indigenous prostitute to reimagine sexually autonomous Indigenous women as inherent threats to (white) Canadian society and themselves, and thereby justify state regulation in both public and private spaces.

scholarly journals A Critical Analysis of Canada's Sex Work Legislation

2018 ◽  
Vol 10 (2) ◽  
pp. 27-36
Author(s):  
Erica Mika Kunimoto
Keyword(s):  
Feminist Theory ◽  
Sex Work ◽  
Vulnerable Populations ◽  
Critical Analysis ◽  
Health And Safety ◽  
Criminal Code ◽  
Gender Violence ◽  
Supreme Court Of Canada ◽  
Conservative Government ◽  
The Supreme Court

In 2013, the Supreme Court of Canada ruled that three sections of the Criminal Code of Canada pertaining to sex work were unconstitutional. In response to this ruling—otherwise known as the Bedford Decision—the Conservative government introduced the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. In this paper, I ask: to what extent does the Protection of Communities and Exploited Persons Act meet its stated goal of addressing the health and safety of those who “engage in prostitution”? In exploring this question, I first trace the legal terrain leading to the PCEPA’s conception. Following this, I show that the PCEPA has failed to address its stated goals in two central ways. First, by co-opting the progressive framing of the Bedford Decision in a way that obscures the situations of violence it seeks to address, and second, by making the most precarious category of sex work even more dangerous through its implementation. In order to render the actual foundations of the PCEPA visible, I draw upon critical race and feminist theory. Through this analysis, I show how gendered and racialized hierarchies regulate violence along and within the sex work spectrum. Overall, this paper argues that the PCEPA has failed to address the health and safety of “those engaged in prostitution,” and instead, has facilitated racialized patterns of gender violence against vulnerable populations.

Bedford and the Structure of Section 7

2015 ◽  
Vol 60 (3) ◽  
pp. 575-594 ◽  
Author(s):  
Hamish Stewart
Keyword(s):  
Sex Work ◽  
Criminal Law ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Proportional Limit ◽  
The Third ◽  
The Supreme Court ◽  
Policy Objectives ◽  
The Law ◽  
The Relationship

In Canada (A.G.) v. Bedford, the Supreme Court of Canada invalidated three prostitution-related provisions of the Criminal Code on grounds of overbreadth and gross disproportionality. The implications of Bedford go well beyond the particular context of sex work and even of criminal law. First, the Court held that the three constitutional norms against overbreadth, arbitrariness, and gross disproportionality are distinct from each other rather than aspects of a single norm against overbreadth. Second, the Court held that a Charter applicant could establish a violation of section 7 by showing that a law is overbroad, arbitrary, or grossly disproportionate in its impact on the life, liberty, or security of only one person and that the effectiveness of the law in achieving its policy objectives was not relevant to these norms. There are some difficulties in understanding this highly individualistic approach to section 7, and those difficulties lead to the third implication. By deferring any consideration of the effectiveness of the law to the question of whether it is a proportional limit on a section 7 right, the Court may be indicating a willingness to do something it has never done before: recognize an infringement of a section 7 right as a justified limit under section 1. The Court’s clarification of the relationship between the norms against overbreadth, arbitrariness, and gross disproportionality is welcome, but its individualistic articulation of those norms is difficult to understand and its suggestion that section 7 violations may now be easier to save under section 1 is troubling.

scholarly journals Why Decriminalise Prostitution? Because Law and Justice Aren’t Always the Same

2021 ◽  
Vol 10 (4) ◽  
pp. 52-65
Author(s):  
Jane Scoular ◽  
Sharron FitzGerald
Keyword(s):  
Domestic Violence ◽  
Social Justice ◽  
Criminal Justice ◽  
Sex Work ◽  
Sex Workers ◽  
Gendered Violence ◽  
Increasing Trend ◽  
Law And Justice

Leigh Goodmark’s work on domestic violence argues for alternatives to criminal justice to ‘solve’ issues of gendered violence. The criminalisation of sex work and prostitution is rarely discussed in this context—a rather odd omission given the increasing trend towards ‘criminalising demand’ and counter-calls for decriminalisation in this domain. In this article, we bring the two debates into conversation, using Goodmark’s work to bring analytical clarity to the prostitution debate and connect sex work to wider social justice debates in feminist anti-violence circles. We aim to move the conversation beyond retribution and the view that law is justice to outline a vision of justice for sex workers grounded in the principles of rights, recognition and representation. By contextualising the decriminalisation of prostitution within the framework of a wider anti-carceral justice movement, we seek to build alliances for social justice that transcend the current divide.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

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