Prostitution prohibitions thrown out by court
On Sept. 28, the Ontario Superior Court threw out Canada’s three Criminal Code restrictions on prostitution, leading advocates of the sex trade to cheer, editorialists to call for decriminalization of prostitution, and pro-family and religious groups to decry the ruling and its faulty assumptions.
Technically, prostitution – the exchange of sex for money – has never been illegal in Canada. In her 131-page ruling, the Superior Court’s Justice Susan Himel found that Criminal Code restrictions on prostitution violated the Charter of Rights and Freedoms.
Specifically, Himel said that section 213(1)(c), which makes it illegal for anyone to communicate for the purpose of engaging (soliciting) a prostitute, violated the free expression rights of those who sell sex for money. She also said that sections 219, 212 (1)(f), and 213 (1)(c) – which prohibit running a bawdy house, living off the avails of prostitution, and communication, respectively – violated a prostitutes’ section 7 rights to life, liberty, and security. Justice Himel said that these prohibitions increased the risk of harm to those engaged in prostitution by forcing them into dangerous situations on the street.
Himel stayed the decision for 30 days so that governments and police departments could respond to the new rules – or lack thereof.
The federal government defended the existing laws, stating the applicants – Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, three women involved in the sex industry – brought their case on the false assumption that prostitution itself was a constitutionally protected right and that the emanations of prostitution that were restricted made their work inherently more dangerous.
Furthermore, the government and several interveners argued that prostitution is inherently dangerous and is often linked to other harmful criminal activities such as drug addiction and human trafficking.
They also cited precedence, including the 1990 Prostitution Reference case in which the Supreme Court upheld the three restrictions saying that the infringements on prostitutes were justified “in accordance with the principles of fundamental justice” and that the government had an interest in ameliorating the harm done to the public through open prostitution on the streets and brothels.
However, Himel cast aside such considerations, saying that times have changed. As evidence, she cited a parliamentary committee report that explored how prostitution is regulated abroad. In other words, she cited foreign laws and regulations to throw out Canadian law on prostitution.
Himel also cited the Robert Picton case. Picton was charged with the murder of 20 prostitutes in British Columbia that had disappeared from 1997-2001. He was found guilty of murdering six women and the courts decided to stay the other prosecutions because he had been convicted for the maximum sentence of 25 years to life.
The applicants were represented by Alan Young, a law professor at York University who has taken part in litigation to have restrictions on marijuana and pornography rescinded in the past. He was assisted by 20 York law students and several lawyers who worked pro bono. He said that while he has worked on the issue for years, he needed the Picton case to help illustrate the dangers of street prostitution. According to the Globe and Mail, Young said the judge “was clearly influenced” by the Picton case.
But Natasha Falle, a former prostitute who heads Sex Trade 101, a group that works with sex trade survivors, told CTV that prostitution cannot be safe. “I’ve worked at both indoor and outdoor locations and they are both equally dangerous.”
Conservative MP Joy Smith (Kildonan-St. Paul) said the decision increased the danger to women and children because there is a connection between sex trafficking and prostitution. Saying she was “astounded” at Himel’s ruling, Smith said if the government did not appeal, “we would have the nation as the pimp and that’s wrong and we can’t afford that.”
Joanne McGarry, executive director of the Catholic Civil Rights League, said “removing what safeguards exist against the exploitation that prostitution represents, this decision will make it much more difficult to prosecute pimps, or offer help to those who want to leave the life.”
Retired Toronto police detective Dave Perry told the Toronto Sun that striking down the existing laws “is like handing out licenses to pimps.” He added that the decision creates a “slippery slope which leads to violence against vulnerable women, legalized abuse, and a masking of the real issues.” A Toronto Sun editorial said that the Criminal Code restrictions “provide the door opener cops often need to elevate their investigation” in sex trafficking cases.
National Post columnist Barbara Kay said that the harm reduction principle does not apply to socially disadvantaged women. Prostitute advocates claim that solicitation restrictions make screening potential clients on the street impossible, that the prohibition on brothels force women to the dangerous streets, and that limits on living off the avails of prostitution prevents hookers from employing security or accountants. But as Kay says, “low-end prostitutes are usually just trying to get from one drug fix to another” and “they will have little interest in pre-screening their johns because they are desperate women.” Kay said it was incredulous that such prostitutes would open offices, advertise their services, keep accounts and pay taxes.
The Native Women’s Association of Canada condemned the ruling saying it utterly failed to look at the broader social problems that lead women to prostitution. In a press release the NWAC said that despite “systemic injustice” suffered by women in the sex trade Himel’s decision “glosses over” the fact that vulnerable women, namely those who are aboriginal, low-income, or suffer from mental health problems or addictions, can find few alternatives to prostitution in order to make a living. It said governments should do more to help women find alternatives to trading sex for money.
Three religious and pro-family groups that were interveners in the case condemned Himel’s decision. The Christian Legal Fellowship, who filed a joint submission with REAL Women and the Catholic Civil Rights League, said the judge erred in balancing the protection of women and society or in considering the “moral and social fabric.”
Ruth Ross, CLF’s executive director, said “prostitution exposes both women and men to physical and psychological harm” because it is “an inherently dangerous activity.” She also said the “decision reinforces the notion that sex is not an intimate and loving act, but instead a commodity that can be bought and sold at will.”
The Globe and Mail’s Kirk Makin reported that the three applicants “expressed shock that they had won any portion of their three-pronged assault on the law, let alone all three.” Asked by reporters how she would celebrate the victory, Bedford, a dominatrix dressed in leather and sporting a whip, said “I’m going to spank some ass … legally.” Former prostitute Scott said she is attending business school so that she can eventually open a brothel that specializes in serving “physically disabled gentlemen.”
Federal Justice Minister Rob Nicholson said the Conservative government was “very concerned” about the decision because it is “committed to the health and safety of all Canadians and the well-being of our communities.” He vowed to “fight to ensure that the criminal law continues to address the significant harms that flow from prostitution to both communities and the prostitutes themselves.”
The federal and Ontario governments have announced they will appeal the decision. Ontario Attorney-General Chris Bentley said the restrictions existed to “protect people from being lured or coerced into prostitution, they protect people from being under domination of those who would prey, and they protect communities from the adverse effects of prostitution-related activities.”
The three applicants and their lawyer have agreed to an extension of the stay for four months so that the Crown can prepare their appeals.
Legal experts predict that it will take up to five years before the case eventually makes it to the Supreme Court of Canada where a decision affecting the application of the law for the entire country will be rendered.
Meanwhile, a similar case is proceeding in British Columbia. In 2007, former prostitute Sheri Kiselbach and the Downtown Eastside Sex Workers United Against Violence, a pro-prostitution lobby group, brought forward a case challenging the Criminal Code provisions. They are also arguing that the restrictions make prostitution more dangerous.