Lakehead University Knowledge Commons,http://knowledgecommons.lakeheadu.ca Electronic Theses and Dissertations Electronic Theses and Dissertations from 2009 2014-01-22 An ostensible exercise in modernity: law, religious intervention, and social science in the case of Bedford vs. Canada Lucky, Vanessa http://knowledgecommons.lakeheadu.ca/handle/2453/493 Downloaded from Lakehead University, KnowledgeCommons An Ostensible Exercise in Modernity: Law, Religious Intervention and Social Science in the Case of Bedford v. Canada By Vanessa Lucky Departments of Sociology and Women’s Studies Lakehead University Thunder Bay, Ontario January 2013 ii Table of Contents Acknowledgements iv Abstract vi Introduction 1 Background to the Current Case Study 2 Theoretical Framework 4 Literature Review 15 Organization of Thesis 25 Chapter 2: Research Design and Methodology 28 Chapter 3: The Role of Collective Values in Law 40 Conceptualizing Law 41 The Canadian Context and the Charter of Rights and Freedoms 54 The Role of Collective Values in Bedford v. Canada 60 Conclusion 67 Chapter 4: The Role of Religious Intervention 69 Conventional Morality and the Canadian Legal Tradition 69 Religious Intervention in Bedford v. Canada 73 iii The Role of Legal Moralism 78 Conclusion 88 Chapter 5: The Role of Expert Witnesses 91 Expert versus Lay Knowledge 94 The Role of Expert Witnesses 99 Conclusion 109 Chapter 6: Constructing the Canadian Sex Trade 111 The Applicants’ Account 113 The AG Canada’s Account 122 The AG Ontario’s Account 127 The CLF and Colleagues’ Account 132 Justice Himel’s Account 134 Conclusion 140 Conclusion 142 References 148 iv Acknowledgements First and foremost, I would like to express profound thanks to my supervisor, Dr. Antony Puddephatt, for his continual support, encouragement and guidance throughout this project. His constant availability and willingness to discuss points of analytic confusion and push me to do my absolute best have undoubtedly strengthened my thesis as well as my scholarly abilities. In addition to providing support and guidance through direction to helpful bodies of literature and multiple rounds of editing, he went above and beyond, providing endless moral support as I worked my way through bouts of frustration and doubted my abilities. He is an amazing supervisor and an even better friend. Secondly, I would like to thank my internal reviewer, Dr. Lori Chambers for her insightful comments and her assistance with enhancing my understanding of Canadian rights cases. Her ideas and insights were invaluable resources and greatly contributed to my final product. I would also like to thank members of the Departments of Sociology and Women’s Studies at Lakehead University who were not committee members but provided endless support and guidance none-the-less, such as Dr. Sharon Dale Stone, Dr. Laurie Forbes and Dr. Pamela Wakewich. I would like to express gratitude to those who participated in interviews for this study. Your time, patience and willingness to answer my queries were very much appreciated. Finally, I would like to offer special thanks to my external reviewer, Dr. Elizabeth Comack for her comments on the final draft of my thesis. I would also like to acknowledge the financial support I have received for this project. I would like to thank the Social Sciences and Humanities Research Council (SSRC) for the Joseph-Armand Bombardier Scholarship for the 2010-2011 academic year, the Ontario Graduate Scholarship Program for the OGS Scholarship during the 2011-2012 academic year and the v Departments of Sociology and Women’s Studies for Graduate Funding Packages over the course of my Master’s degree. Additionally, I would like to thank the many friends, fellow graduate students and family members who have provided support, encouragement, laughter and editing throughout this project. I would especially like to thank Heather Cameron, Max Bernosky, Kathleen Bailey, Caroline Cox, Holly Morgan, Taslim Alani and Katrin Roots. You were always there for late night brain storming sessions, editing, coffee breaks and walks so I could either rant or forget about my research to restore my sanity, and a good laugh when I needed it. I need to thank my dear friends Ashley Partridge, Karla Smith and Melissa Bahan. You were always there for late night chats, constantly encouraged me to pursue my passions and believed in me even when I doubted myself. I would like to thank my partner, Al, who likely knows just about as much as I do about my topic after listening to me talk about it non-stop over the last few years. Thank you from the bottom of my heart for your love, patience, support, understanding and editorial skills. Lastly, I would like to thank my family, especially my sister, Megan, and my mother, Heather. Without your encouragement I could have never accomplished what I have. Your endless love and support mean more to me than you will ever know. Finally, I would like to express my deepest gratitude to my late aunt, Nell. Without her inspiration and selfless dedication to helping me pursue my dreams, I would never have made it to where I am. vi Abstract Drawing on Adele Clarke’s (2005) method of situational analysis as well insights from the social construction of social problems approach (Spector and Kitsuse 1977; Best 2008), symbolic interactionism (Prus 1999) and feminist approaches to power and situated knowledge (Collins 1990; Smart 1992; Haraway 1999; Comack 2006), this study examines how law, religion and science interact to construct an image of the Canadian sex trade in the case of Bedford v. Canada. Historically, prostitution has been debated in academic accounts, public forums and the Canadian courts. This debate resurfaced in Canadian courts in 2010, deploying a host of perceptions from religious groups, academics and the general public. Attending to sites of silence as well as latent power relations in the current debate, I examine the interactions between law, religion and science in the Bedford case. Emphasizing how novel precedent developments in the Canadian context as well as historical discourses are shaping actors’ constructions of the dangers associated with prostitution in Canada, I explore concepts such as “legal moralism”, “the risk of harm”, “expertise” and “advocacy” and how legal definitions of these concepts shape the terrain on which rights cases are negotiated in Canadian courts. Moreover, the present case study examines how legal fictions presenting the law as neutral and objective construct false binaries between lay and expert knowledge, masking the value-laden nature of Canadian rights cases. Lucky 1 Introduction Canadian prostitution law is a highly contested issue. In 2010, this debate was brought before Canadian courts in the third major legal challenge to prostitution laws in Canadian history. In addition to offering an opportunity to analyze contemporary constructions of the sex trade in an arena where multiple perspectives on the issue are dialoguing with one another, Bedford v. Canada permits examination of how three major institutions—law, religion and science— interact in rights cases. In this thesis, I analyze the original case of Bedford v. Canada using the social construction of social problems approach (Best 2008; Spector and Kitsuse 1977) as well as feminist approaches to power and situated knowledge (Mackinnon 1997; Haraway 1999; Comack 2006), and Adele Clarke’s (2005) method of situational analysis in an effort to understand the role of public opinion, religious intervention and expert witnesses in shaping how the Canadian sex trade is constructed in this case. Most centrally, I will argue that contrary to conventional assumptions that law, religion and science represent conflicting epistemologies, in the present case these institutions collude to construct a situation in which legal fictions presenting the law and politics as separate mask the moral and political nature of the current debate while constructing a false binary between lay and expert knowledge. As a result of this collusion, sex workers, who are arguably the most qualified individuals to explain the nature of the sex trade in this case (and whose rights are being negotiated through this legal challenge) are silenced while religious interveners are granted an erroneous status as representatives of the Canadian moral fabric in the Bedford case. Religious intervention for the purpose of representing the moral values of the Canadian public in rights cases is redundant because the moral values of Canadian society are central to Charter challenges. Ironically, through privileging the accounts of law and science in the current debate, Bedford v. Canada constructs a more morally charged Lucky 2 representation of the situation than would be the case if the accounts of sex workers were granted the same status as those of other actors. Background to the Current Case Study Although prostitution is not illegal in Canada, virtually all activities surrounding prostitution are criminalized by various sections of the Criminal Code of Canada. Prior to the 1980s street prostitution was controlled under the vagrancy and solicitation provisions of the Criminal Code. The 1978 decision in Hutt v. The Queen (1978 CanLII 190 (SCC), [1978] 2 WWR 247), in which the Supreme Court of Canada ruled that solicitation had to be pressing and persistent in order for police to charge a street worker, was a catalyst to Canada’s replacement of its solicitation laws (s. 195) with what is known as the communication law (s. 213 (1)(c)) in 1985. The Prostitution Reference (Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S. C. R. 1123) was the first major constitutional challenge to Canada’s prostitution laws. Although the Supreme Court ruled that the communication law was an infringement on freedom of expression (Charter s. 2(b)), it also held that this infringement was justifiable under s. 1 of the Charter of Rights and Freedoms. Moreover, the Court held that s.