There Is No Sex in the Champagne Room(?): Critically Reconsidering Canada's De Facto Prostitution Prohibition after R. v. Labaye by Andrij Y. Harapa, B.A. (Hons.) A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Arts in Legal Studies Department of Law Carleton University Ottawa, Ontario June 10th, 2008 © 2008, Andrij Y. 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The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada Abstract The legal regulation of prostitution in Canada has historically been guided by moral regulation. According to classical liberals such as J.S. Mill, criminalization on moral grounds alone is insufficient and unjustifiable. The social construction of prostitution as deviant and therefore criminal has exhibited such a moralistic approach and has resulted in a set of laws governing prostitution that, although they are not clear in what they are trying to accomplish (full legalization or criminalization), they have socially and legally marginalized sex workers. Given the harm that Canada's prostitution laws contribute to, a new approach is warranted. A recent Supreme Court of Canada case dealing with a 'swingers' club operator being charged under the bawdy-house law, R. v. Labaye, provides an ideal opportunity to rethink prostitution regulation and break the cycle of victimization and deprivation of individual liberty. The majority's reasoning in Labaye was implicitly guided by Mill's harm principle which states that it is more prudent to criminalize toward a goal of preventing tangible harm to others than to regulate on the basis of morality or legal paternalism. A harm-reduction solution can then be utilized to ameliorate the difficulties in trying to legally suppress something that remains in great demand. In so doing, an issue of public importance can be addressed with a clear, 'amoral' and principled approach- something that is necessary to end both the harms flowing from the current law and also the hypocrisy displayed by a Conservative government unwilling to undertake the challenge of legal reform in this area. 11 Acknowledgements This thesis would not have been possible without the direction and support of Ron Saunders. I would also like to thank Peter Swan and my colleagues in the Department of Law for their helpful and insightful input, for which my work undoubtedly profited. Dedicated to my P and M, who have helped and encouraged me to realize all my goals to date, and without whom I would not be where I am today. 111 Table of Contents Chapter 1: Introduction 1 Chapter 2: J.S. Mill and the Harm Principle 10 Chapter 3: Deviantizing Prostitution 33 Chapter 4: Regulating Indecency, Regulating Morality 64 Chapter 5: Prostitution and Legally-Produced Harm 92 Chapter 6: Labaye and Harm-Reduction 123 Chapter 7: Conclusion 140 Bibliography 147 IV Chapter 1: INTRODUCTION Prostitution is a controversial and contentious social problem, with opinions on it tending to polarize along the political spectrum. Part of my interest in this social problem stems from the way in which right-wingers and moralists so uncritically disgorge hyperbole and condemnation directed at 'the great social evil'. Intuitively, prostitution is not something desirable or socially redeeming, but this alone is not sufficient to summarily criminalize it. An in-depth look into the realm of prostitution reveals that it is a complex phenomenon- one that does not lend itself to 'easy answers' as to how to approach it legally. In some cases, such as when minors are involved or individuals are coerced into sex work, legal regulation is necessary; in other situations involving fully consenting adults in private contexts, legal regulation may not be warranted. These conflicting interpretations make sex work a rich academic subject from a socio-legal perspective. My main purpose in pursuing the issue of prostitution academically involves promoting human rights and individual liberty. As will be demonstrated, the violation of the previous basic rights and values is a daily reality for sex workers in Canada who are victimized on the streets and in other dangerous venues, and simultaneously targeted by law enforcement. In a Chapters store recently, the work took on a deeper importance for me as I thumbed through a book on serial killers and read over and over that the victims almost always included prostitutes. Coupled with the Pickton case (a reminder of this constant victimization), this made me wonder why the Conservative government felt that 'no move was the best move' upon considering the recent Standing Committee on Justice and Human Rights' (SCJHR) report on prostitution, The Challenge of Change (2006). I am an individual who is thus deeply concerned with the amelioration of the harms 1 associated with this social problem through practical legal reform. However, this thesis could not simply be confined to discussion of 'legalization vs. decriminalization'; this has been done and over-done in the literature. Rather, I wanted to provide a new take on this social issue by using a recent case involving the effective legalization of swingers clubs, which addressed many issues common to prostitution. This case, R. v. Labaye (2005) provided a new angle to pursue based on a few main factors: since the club involved an admission/membership fee it was legally treated as a venue for prostitution and the owner was thus charged with the Criminal Code offence of keeping a common bawdy-house; the eventual ruling was very libertarian and employed a principle for legislating such activities based on John Stuart Mill's libertarian philosophy; and the case has the potential to impact prostitution legal reform. This thesis therefore provides an updated look at the 'problem' of prostitution in Canada; it seeks to challenge the ideology and conservative rhetoric that have prevented progressive legal reform within this realm. Rather than dealing with normative notions of 'good' or 'bad' and what is and is not desirable, the approach in this thesis is to explore the socio-legal genealogy of this 'problem' and to arrive at a pragmatic solution given the social realities in Canada. As noted, the particular focus of this work is the Supreme Court case R. v. Labaye, which sets a possible legal precedent for preventing the very real problems endemic to the street sex trade. Moreover, it provides an ideal point of departure for critically reconsidering laws that do more harm than they prevent. The application of Labaye to prostitution regulation is the central point of analysis in this thesis. However, this task requires considerable introductory and contextual discussion. The analysis of the application of Labaye to prostitution regulation naturally 2 ties together the concepts of moral regulation and J.S. Mill's principle of harm, which lend themselves to analysis through the theoretical frameworks of social constructionism and classical liberalism/libertarianism. Thus, the discussion of the prostitution problem differs notably from the perennial public debate on prostitution, concerned primarily with its place in contemporary society. By employing different theoretical precepts as well as a recent court case dealing with a swingers club, I address the legal regulation of sex work from a non-traditional and 'fresh' perspective. In addition to my role as an academic, as a Canadian citizen, my orientation toward this topic is concerned yet unbiased; I do however approach this area principally concerned with fundamental individual liberty and human rights. This liberal/libertarian stance explains the narrow focus in this thesis on consent-based, uncoerced sex work. Within the vast range of sex work, there are many manifestations that are undesirable such as child labour, human trafficking, as well as 'partially' coerced work, that is, sex work as means of survival due to poverty or debt. To clarify this taxonomy of sex work, Lowman distinguishes three forms of commercial sex as sexual slavery, survival sex (most often driven by drug addiction or abuse) and, quite simply, prostitution, "which is a choice made by a person who has other choices" (2004: 147).