Why Doesn’t Kim Pate Know What the Bedford Case Was About?

For those who don’t know, Kim Pate is the executive director of the Canadian Association of Elizabeth Fry Societies, a national association that represents a group of local social service organizations, all named for the Quaker prison reformer Elizabeth Fry. Their mission is to reduce women’s incarceration in Canada.

Elizabeth Fry Societies help women access legal aid, run diversion programs that women can be sentenced to complete instead of going to prison, supervise probation and community service, offer assistance meeting basic food and shelter needs, offer counselling and therapy, help women get pardons and do other stuff related to the general idea of making life a little easier for criminalized women. If you can swallow the smug self-righteousness that social workers seem to be trained in, and if you ignore the fact that “reform” and “collaboration with the criminal justice system” are very much one and the same here, you could say they are a force for good in a world where very few people give any fucks at all what happens to criminalized women.

The Supreme Court of Canada Thinks Human Trafficking is AWESOME

Since Pate became executive director, the Canadian Association of Elizabeth Fry Societies has also been an abolitionist organization, supporting “End Demand” laws. Fine. She’s probably not interested in changing her mind about that. But I want to talk about Pate’s  response to the Supreme Court of Canada’s decision to strike down Canada’s anti-prostitution laws as unconstitutional. As the CBC reports, Pate said:

It’s a sad day that we’ve now had confirmed that it’s OK to buy and sell women and girls in this country. I think generations to come — our daughters, their granddaughters and on — will look back and say, ‘What were they thinking?’ …

To say that [prostitution] is a choice when you’re talking about the women we work with is to say that in fact it’s OK to just exploit them. …

We’ve never seen men criminalized for buying and selling women and girls. We’ve always seen women criminalized for selling themselves. We absolutely object to the criminalization of women. Our position would not interfere with those women who truly have made their choices.

We’ve seen plenty of “prostitution is bad and everyone who disagrees with me is a lying pimp” rhetoric these last few days (Jacqueline Guillion, determined not to admit that the Bedford applicants are current and former sex workers, called them “hopeful pimps”). That’s to be expected.

But criminalized women are kinda relying on Kim Pate to know what the fuck she’s talking about, considering she’s heading up a national legal advocacy organization on their behalf. And if it’s not the case that Pate doesn’t understand the Bedford decision, well criminalized women (and the general public) are also relying on her to not mislead them.

Here’s What the Supreme Court Really Said

The Supreme Court of Canada did not say buying and selling women and girls is “OK.” I’d bet paper money that most of those 9 justices think prostitution is icky, but even if they didn’t, they couldn’t decide that prostitution is “OK.” That wasn’t the question they were asked to answer. The question the Supreme Court was asked to answer was “are Canada’s laws related to prostitution OK?” And they said no, these laws are not OK, because they’re not only not protecting workers from the harms of prostitution, they’re getting women killed. 

As written in the decision:

[2] These appeals and the cross-appeal are not about whether prostitution should be legal or not.  They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.  I conclude that they do not.  I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.

Pate can be disappointed that the Supreme Court didn’t write new laws criminalizing clients and bosses of sex workers if she wants. All the disappointment in the world will not change the fact that writing new laws is parliament’s job, not the court’s. But shouldn’t she still be happy to see the end of laws that are causing women’s violent deaths? Especially since the Harper regime is very likely to implement “Nordic”-style laws (minus the Nordic-style social safety net of course), plenty of abolitionists are treating the Supreme Court decision as the first step in the right direction. 

A part of the reason the Supreme Court decided the laws are unconstitutional is that they explicitly rejected the argument that selling sex is a worker’s free choice. The state’s pro-criminalization argument was that prostitutes have made a “lifestyle choice” and thus have caused whatever violence they face. The court’s decision was that more often than not prostitutes have not made a meaningful choice to sell sex, and thus cannot be said to freely take on the risks that criminalization exacerbates. The decision reads:

[85] For the following reasons, I cannot accept the argument that it is not the law, but rather prostitutes’ choice and third parties, that cause the risks complained of in this case.

[86] First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472).  Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money.  Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice”  (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

I’m going to go ahead and assume Pate is an intelligent woman who is qualified for her job. So she must know what the arguments in the case were and what the decision said. Which brings me to my question: what is it about the prostitution policy Pate advocates that makes her feel like she needs to mislead me about the Supreme Court’s decision to get me on board? If she is speaking on behalf of the sex workers who would rather not be sex workers–on behalf of the kind of sex workers who use the services of Elizabeth Fry Societies–why can’t she tell us that what the Supreme Court decided was that sex workers don’t deserve to be made extra vulnerable to violence, they don’t deserve to be imprisoned for doing whatever they can to make themselves safer, and our government does (despite its vehement protestations) have a responsibility to write laws that won’t get sex workers killed:

[89] It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.  The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.  The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence. …

[158] …  If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects [of the communicating law] is established.

It is worth noting that while the court’s assessment of the government’s responsibility to not make prostitutes more unsafe is based in part on the workers’ lack of meaningful choice, it is also based in part on the fact that sex workers are doing nothing wrong by selling sex. That is, a prostitute is not breaking the law by prostituting. If we have an interest in keeping the government responsible for not harming sex workers, and I think most of us do, then we should be very careful about what we criminalize.

The actual nature of the Bedford decision is necessary information for sex workers, no matter what side of the decriminalization/abolition debate they are on. Whatever political gambit Pate’s running by positioning herself as fighting back against a pro-prostitution Supreme Court, it does not justify her withholding that information from the people it affects.

Advocates: Please Know What You’re Talking About Because there is Shit to Do

I expect Pate and other abolitionists, along with everyone else with an interest in prostitution policy, to respond to the Bedford decision by lobbying parliament to create new, less harmful laws. We definitely disagree on what a less harmful legal regime would look like, but given her position, Pate has a responsibility to lobby. One hopes she is also thinking about how the decision to throw out all prostitution-related laws in their entirety, based on an interest in sex workers’ wellbeing, can benefit the people harmed by these laws.

Social service organizations have a key role to play in getting workers out of jail, getting pardons for past convictions, removing prostitution offenses from workers’ criminal records and lobbying for reparations for the thousands of workers harmed by the communicating law, by incarceration as a result of its enforcement and by violence as a result of its pressure on workers to stop screening clients. Elizabeth Fry Societies are well-positioned to do this kind of work.

So I’ll say it again: all policy debates aside, sex workers are relying on our self-appointed advocates to know what they’re talking about and to tell us what’s going on without trying to bullshit us.

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5 comments

  1. martindufresne

    “…Jacqueline Guillion, determined not to admit that the Bedford applicants are current and former sex workers, called them “hopeful pimps””
    Nice try but… The Bedford case was more about about decriminalizing pimps and “bawdy-house” owners than it was about decriminalizing soliciting for the purpose of prostitution – Young acknowledged so much in court – and it was precisely as prospective beneficiaries of this reform that Young hired them. They had to have an interest in the case.

    • sarah m

      I’m ambivalent about publishing the comment above because I’ve asked you before not to comment here, Martin. You can believe what you want to believe in your corner of the sky, of course, but I have a real problem with men who are not prostitutes who have opinions about what prostitutes should do, and who are not willing to actually listen to anything I have to say. You talk AT women who disagree with you, not WITH them. It’s offputting. But I also don’t want to stifle opposing points of view. So here we are.

      From what I saw of the Bedford case, I would say there were pretty big differences between Young’s priorities and the plaintiffs’ priorities, just as there are differences in experiences and politics among the plaintiffs themselves. None of the plaintiffs were willing to let go of eliminating the communicating law, perhaps because they have all done street-based sex work. Young was more focused on what he considers to be “harmless” and “consensual” sex work. However, there is a limit to how much three prostitutes can look a gift horse in the mouth without risking losing their lawyer.

      On the matter of the plaintiffs being “hired,” you are simply incorrecct. Young did not pay them to make his case. For better or for worse, the plaintiffs in Bedford signed on for a legal challenge they believed was necessary and right. They risked or sacrificed time, money, relationships with conservative family members, health, livelihood and future job opportunities for it. You don’t need to believe they are correct in their analysis or conclusions to do justice to the realities of their lives or the reasons behind their politics. You can do it just because you’re a feminist and you respect them as women.

  2. elxn41

    I believe the Elizabeth Fry society depends on good relations with the Harper government to keep their funding from Corrections Canada, They also see that the Harper govt have a nice 20 million buried in C36 for well-behaved NGOs. Watch and see all the vocal pro C36 orgs eventualky lap up those funds.

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