I believe that the government has the information it needs to recognize that the Nordic approach will replicate the harms of the laws just struck down and won’t even be legal in itself. They also do not want to have the burden of telling us what we cannot do as consenting adults in private. So two things. If they do bring the Nordic model, meaning say they are targeting customers and associates of sex workers, it means they are just kicking the can down the road again, so they can say the courts forced them to decriminalize sex work. If they don’t, they will finally in effect decriminalize it, and just bring in laws targeting the negative aspects of the sex trade such as human trafficking. Laws like that are already there, so it means they say they will enforce existing laws for a change, or actually do something to protect women. Either way, we have won, will win and there is no going backwards. When the new law comes out, I will make sure I read it and ask what other informed observers think of it before I comment publicly. That is something those opposed to our challenge should consider trying some time.
I have seen and been told that there has been a constant stream of articles saying the government should not criminalize the purchase of sex or being a pimp. It appears that a couple of items in favour of that approach, such as put forward by Member of Parliament Joy Smith, have been demolished. Other articles have revealed how police in several areas of Canada are cooperating in treating the sex trade, whatever that is, just like any other business. So the question going forward is who gets hurt. If Mr. Harper brings in new laws, instead of basically enforcing remaining laws for a change, organized crime and bad pimps and so forth will prosper and celebrate. If he does what we have advocated, women will be safer and better off in every respect. If he finds the idea of women being paid for sex acts (which he has yet to define) wrong, he should look at the booming businesses of strip clubs, massage parlours, dungeons, and escort agencies that have flourished since he came into office. It’s a little late in the game to get up on a high moral horse. I’m up on mine, and I think women should not be legally required to perform sex acts only for free.
I have been getting reports and reading media from all over the country and it is quite clear that there is no consensus among authorities or the public that the purchasers of sex acts, whatever that means, should be targets of any new legislation. Ditto pimps, whatever they are. Instead, there is a consensus that if people are being forced into sex work or want out of it they should have help made available to them. Just like our side has been saying. But let’s not stop there. Let’s have help for our women in uniform who are being sexually harassed and assaulted. I wouldn’t want my daughter in the military or the RCMP. Too much sexual abuse. Let’s have exit strategies and rescues for them as well. We might even want to throw in a rescue program for whistle blowers in the civil service who have been betrayed. Is this beginning to sound like a “Tough on Harper Agenda”?
This is the fourth of four instalments.
Professor Young remained active for me, and when I reopened in downtown Toronto just after my conviction he asked the police if they had any objection to what I was doing, which was identical to Thornhill – which resulted in a massive raid and trial. I was open 4 years. No raid, no trial.
Another lawyer, Pierre Cloutier, advised me on and assisted me in the handling of the administrative matters of my business, like registration and minute books and so forth.
Just after I closed Professor Young told me he was considering challenging the constitutionality of some of the prostitution laws in court and wanted me to be one of the plaintiffs. Want to know what is involved in a Charter challenge? Try it some time. Half a million dollars for starters. Add to that tons of volunteer legal time. The work involved with the experts. Try 3 years of hearings and related preparation. Try dealing with government lawyers who do not hesitate to offer crap as evidence and argument. If you don’t believe it was crap ask Judge Himel and the Supreme Court. Try to deal with a government that orders their lawyers to make it go away by any means necessary and then orders them to appeal, when there are no grounds to appeal, simply to make the issue go away. A government that has no regard for Charter challenges.
Then try dealing with a portion of the media who in one breath points to the downsides of the sex trade, whatever that is, while turning a blind eye to the finding of the courts that the very laws they are fighting to retain are largely the cause of those evils. Try dealing with commentators who bring in obscure new studies or reports, not tested in court, to attack legalization of the sex trade, while ignoring the findings of a virtual 3 year public inquiry, with evidence tested in court, that resulted in the Himel decision and what it had to say about other countries. Barbara Kay and Margaret Wente are two recent examples of such cherry pickers who don’t even say in their columns if they have even read the decision. Rosie DiManno said “read the damn decision”, out of frustration with such lousy journalism.
It was never our intent to work our way to the Supreme Court. If Mr. Harper and his justice ministers were doing their jobs, they would have said that even if Judge Himel was partly right the laws needed changing, and not defending. They had the choice of acting all along. But they put themselves first.
In 2011 I published my memoirs, where I tell all about my legal battles. I got help from, you guessed it, a lawyer. Sender Herschorn and his staff were wonderful in ensuring I was within the law in writing the book, in what I said in the book and in advising me on drafts. He wrote to those mentioned in the drafts and sent them copies and made sure that no one had grounds to sue me. He also helped me with the writing and was encouraging throughout. He assisted me in private legal matters as well.
So you see, there is a great deal that lawyers can do for their clients in the sex trade, or those considering entering it, other that just react to charges or arrests. Lawyers can act proactively. Chanelle and Karen are going to talk about that, and believe me, they know their stuff and I am so grateful to share this time with them tonight because what they have to tell you is very important.
I want to conclude by sharing just one last thing about lawyers with you. It’s the same lousy joke I tell whenever I speak to audiences of legal professionals or law students. The one good thing about the joke is that it’s so bad it ensures I have to shut up and sit down immediately. Here’s the joke.
Question: What’s the difference between a dominatrix and a woman lawyer?
Answer: The dom returns phone calls.
Thank you all very much.
This is the third of four instalments from my prepared text.
I also want to talk tonight about lawyers and my long journey at their side. First I want to bring to your attention that I believe that Val Scott, Amy Lebovitch and I probably got too much credit for striking down the prostitution laws. Our legal teams got too little credit. Let me drop a few names: Professor Young, Marlys Edwardh (who fought for Dr. Morgantaler), Ron Marzel, Stacey Nichols, Sabrina Pingitore, Kendra Reinhardt, Katrina Pacey, Daniel Sheppard and other lawyers fought for our side directly and indirectly.
I have been fighting, and my lawyers have been fighting on my behalf, against the laws that were struck down for 20 years. In my youth I was too poor and lacked the support to contemplate challenging the laws. But in 1994, when I was raided in Thornhill that changed. I had support. You can read all about that in my book, but with that support I took a position. I was selling role play and refused to sell sex. Yet I was raided and charged as a prostitute. David O’Connor represented me at my bail hearing and did a good job. The late Ken Danson began my defence preparations and Morris Manning took over from him. Morris also represented Dr. Morgantaler. My supporters recommended that change and Ken was supportive. Ken told me, even after he was replaced, “Terri, you can’t plead guilty. Promise me you won’t”. Morris lived up to his reputation and at my trial he had the charges thrown out because they were too vague. Unfortunately that did not hold up on appeal. Murray Klippenstein took over. He worked with Charlie Campbell and was advised by Paula Rochman and assisted by Wendy Snelgrove. That was in part because I and my supporters felt that lawyers with a reputation as activists were going to be important as the matter became a high profile battle of attrition. During this time George Callahan, a true gentleman and pit bull as the situation required, assisted me in ensuring my private affairs were in order. He also joined Klippenstein’s team, which was then disqualified. They were ruled in conflict because they represented all the accused together. Fortunately, Osgoode Professor Alan Young signed on as an advisor to the team and was ready to take over if the Klippenstein team was disqualified and he did. He was assisted by lawyer Leah Daniels, who taught at Seneca, when my trial finally got under way in 1998. They spent all summer on the case and had a team of students assisting them.
It was a barn burner of a trial. The CNN truck and all the major networks staked out the courthouse in Newmarket, wherever that is. The trial went on for weeks and the questions to be decided, as some reporters said, were as fundamental as those raised in the recent Supreme Court decision – in my view more fundamental. Judge Roy Bogusky, with all the mass media assembled, gave a short oral decision. He said the people there had to make a living and were in a hurry to leave. What a fool. Even he was lucky to get a seat at the trial. He refused to say which of the things I did were not legal and what he did specify was for such poor reasons that no appeal that was not rigged would uphold such a disgusting miscarriage of justice. He said the misuse of the search warrant was an understandable reaction of young bucks. Rosie DiManno finished off his reputation for good in her column.
Professor Young and Paul Burstein (who needs no introduction) did the appeal in 1999. Well, Judge Finlayson of the Ontario Court of Appeal wrote the worst decision in its history. Read it some time. It was so poor, lawyers told me, that it meant that a stripper or waitress could be charged as a prostitute and it was almost impossible to have a search warrant that could be challenged. It was so poor that judges afterwards threw out prostitution and bawdy house charges simply because my conviction and appeal decision were such garbage that they became precedents to cite when acquitting. Ever wondered why prostitution convictions fell steadily since, despite the rising population and the growth of the sex trade, whatever that is. Answer in part, Finlayson.
Some of this was pointed out by now Judge David Corbett, who sought leave to appeal to the Supreme Court. He worked with Lucy McSweeney and Timothy Banks, then an articling student, when David prepared his masterful factum in 2000. Unfortunately it was not heard.
This is the second instalment from my prepared text.
Mr. Harper has replaced Mr. Nicholson with Mr. Mackay, the former defence minister. Women and minorities being harassed in the armed forces is more of a problem than enemy fire. Let that be Mr. Mackay’s legacy. Now it appears he is going to add to it by bringing in new laws that will not stand and will not be enforced or be obeyed, perhaps something like the so-called Nordic approach. If they bring that in it will blow up in their face. My fellow speakers will be telling you all about that shortly. But I want to make a couple of observations of my own.
For one, that approach targets men and Mr. Harper gets more support from men than women. The governments in that brought in that legislation are more left wing and more female supported than Mr. Harper’s government. It also means we women can accuse a guy who took us to dinner of trying to buy sex from us. The potential for blackmail of men is endless because women cannot be charged for selling sex. I’m sure Mr. Harper’s power base of white collar men will be thrilled to have that hanging over them.
And remember something else, something very important. The other countries who outlawed the purchase of sex acts, whatever they are, did not have a Himel decision which the Supreme Court has made a guideline for new legislation. Those very laws from other countries might be illegal in Canada. Discriminatory, too broad, overreaching, work against their stated objectives, blah, blah, blah and on and on against the Nordic approach; I think we get it.
Judge Himel said that laws other than the ones she struck down address the worst aspects of prostitution, aspects which, in large measure, resulted from the laws she struck down. So no new laws need to be introduced. The higher courts agreed. They seemed to say there was nothing less patriotic than to take the position the government has taken and is considering.
And of course law enforcement officials point out that serious criminals would go undetected and unpunished if resources had to be devoted to ensuring women only had sex for free.
And there’s more. Perhaps most important of all. New legislation must tell us what we cannot do in private as consenting adults for money or not. The Supreme Court said new laws, if vague, would not be viable, whatever the approach. When a new law comes in it will have terms of reference. It will say “for purposes of this act, a sex act is defined as” and blah blah. If the blah blah is not clear, the law is not itself legal. Thank you Beverly MacLaughlin. Home run girl!
Now tell me, what part of all this does Mr. Harper not get? Why didn’t Mr. Nicholson and Mr. Mackay, who are lawyers, resign rather than advocate laws that everybody knows are unworkable and are a disgrace to a free society?
I cannot comment responsibly about Mr. Harper’s economic, foreign or environmental policies and so forth. But what I can say is that, in my opinion, on matters of criminal justice he has fallen beneath the dignity of many of the criminals he says he is getting tough on.
Not only that. Some of you may have heard that Mr. Harper keeps calling me and offering to appoint me to the Senate, as a government whip. Well, I am a convicted prostitute, and he keeps trying to buy me, so he would be a John. I will have to report him. No – means – no, Stevie! Bad boy! Well, enough about him.
This is the first of four instalments from my prepared text.
Before I say anything else I want to acknowledge Dr. Henry Morgantaler, who died this summer. I appreciate what he was up against, not just because I have been in legal wars and in jail too, but also because both of us were advocating for women. Blessed be his memory.
Now, on the lighter side, let me tell you a little story I think you’ll appreciate. Some years ago I was whipping a client strapped to a bench. With each lash he had to call out “thank you mistress, another please” and he had to sound like he meant it. After he had wept to my satisfaction I removed his restraints and let him kiss my boots. Then I told him to get dressed and meet me at the front door. Now get this. When I let him out the door we said goodbye to each other. He said “Goodnight mistress”. I said,“Goodnight, Your Honour”.
Speaking of judges, our judges are now, thankfully, addressing the federal government’s so called “Tough on Crime Agenda”, which is a scam. The government itself is an offender if laws passed are unconstitutional, or contrary to Canada’s values. Is it patriotic to focus on length of sentences and ignore overcrowding in prisons? Ignore the misuse of warrants? Ignore the underfunding of legal aid? Ignore spousal abuse? Ignore the shortage of shelters for women, or of shelters that accept family pets so the wife beaters can’t use the family pet as a hostage? Is it patriotic to be caught by surprise by the sexual harassment scandals about women and minorities in the armed forces and the RCMP? And, my friends, is it patriotic to tell women they can only have sex if they have it for free?
Did you know that our constitutional challenge prevented a mandatory minimum prison sentence for keeping a common bawdy house? Even a sad sack like former justice minister Rob Nicholson should have realized that the law was flawed. Justice Himel struck down the law in 2010 and the government was caught completely off guard. They didn’t even know the decision was being released. I doubt if Mr. Harper and Mr. Nicholson even knew of the challenge. Yet, an appeal was announced within 3 hours of the release of the decision, despite the fact that Judge Himel said Parliament’s involvement was required. Same reflex reaction after losing at the Ontario Court of Appeal. Nicholson said the government’s position was still that the laws were constitutional. Beverly MacLaughlin and the Supreme Court, in my opinion, then confirmed that Mr. Harper and Mr. Nicholson and their cronies were either liars, who just wanted the issue to go away, or dummies. She did not say which. Take your pick. Then remember that this is the same gang that may be drafting new legislation.
After opening remarks we responded to questions we were given in advance. Here is another question and the answer I gave. What are some of the potential positive effects of the opposing models? Here are 4 potential positive effects of the Nordic Model: (1) It creates jobs for those working in law enforcement (2) Women can make money by blackmailing any guy who takes her to dinner saying he tried to buy sex from her (3) Women can blackmail any landlord saying she paid them with money she got from selling sex (4) If you are making a good living committing crimes unrelated to the sex trade the police will be less able to catch you because they will be hunting down women who get paid for sex or men who pay them, while all over the place women are having sex for free.
After opening remarks we responded to questions we were given in advance. Here is another question and the answer I gave. Assuming we can’t continue with the status quo, what model should Canada adopt for regulating the sex trade industry? The Canadian model. Regulate it like you would regulate any other business. Enforce labour laws that do not mention consenting adult behaviour in private. Police no more frequently. Encourage and act on legitimate complaints. Regulate the sex industry for payment of taxes, health and safety, zoning and so forth just as often and just as enthusiastically as if it was a factory making shirts. Enforce human trafficking laws, but do it for nannies and domestics and mail order brides and sweat shop workers on an equal basis to sex workers. Enforce laws against child pornography to the extent you catch more than 2 or 3 per cent of offenders. Enforce laws against domestic abuse by building more shelters for women, and have shelters that accept family pets so the pets are not used as hostages by wife beaters. And elect a prime minister who walks the walk. Mr. Harper said judges should not make laws. Then he hides behind the skirts of judges through 2 appeals when the judges said he should not appeal, but just bring in new laws via Parliament, if at all. All the time organized crime and terrorists and human traffickers and predators are thanking him because the laws he kept saying were constitutional were the ones that prevented safety for women.
After opening remarks we responded to questions we were given in advance. Here are the questions and the answers I gave. Here is the first question, in 2 parts. With the striking down of the 3 parts of the criminal code how are communities responding? What processes are under way in Canada today? First of all, the laws were under-enforced for years, and the number of charges were falling dramatically even though the population and sex work businesses were expanding. The laws left in place for another year are themselves illegal. For this reason the police and crown attorneys are dropping many charges laid under those laws. Also, they have mostly stopped enforcing the laws. Sex workers are coming out of the shadows and into the light where it is safer. For the future, if authorities use any laws to control when consenting adults have sex by any description, they will violate the ruling of the Supreme Court. That ruling said that the laws, and their enforcement, must not be arbitrary, discriminatory, overreaching and so forth. The original judge was explicit. She said the worst aspects of prostitution were addressed by other laws. We must move away from a moral basis and toward a safety basis and that means enforcing the laws on the books that were not struck down, for a change.