Overview

In Bedford, the Supreme Court struck down prohibitions against communicating in public for the purpose of sex work, living on its avails, and working from a bawdy house. Its narrow constitutional reasoning nevertheless allowed Parliament to respond by adopting the “end demand” or “Nordic Model” of sex work regulation, an approach widely criticized for failing to ensure sex worker safety. Judging Sex Work takes stock of the Bedford decision, arguing that the constitutional issue was improperly framed. Because the most vulnerable sex workers have no realistic choice but to commit the impugned offences, they already possess a legal defence. The constitutionality of the sex work laws should therefore have been assessed by their application to those who choose sex work, an approach that militates in favour of upholding these laws based on current jurisprudence. While this approach leads to the former restrictions on sex work being constitutional, it also has the salutary effect of forcing litigants to consider a more pressing question: Can sex work be rationalized as a criminal matter at all?

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Colton Fehr is an assistant professor in the Faculty of Law at the University of Saskatchewan. He is the author of Constitutionalizing Criminal Law and has been published in numerous journals, including the Journal of International Criminal Justice, the National Journal of Constitutional Law, the Canadian Journal of Law & Technology, the Canadian Criminal Law Review, the Criminal Law Quarterly, the Journal of International Criminal Justice, the Osgoode Hall Law Journal, the McGill Law Journal, the Queen’s Law Journal, and the UBC Law Review.

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