Prostitution restrictions lifted by Ontario court

EFC's Don Hutchinson said ruling will not lessen exploitation of women.

On March 26, the Ontario Court of Appeal upheld most of a 2010 Ontario Superior Court decision that struck down restrictions on prostitution. In 2010, Judge Susan G. Himel ruled that the provisions of the Criminal Code that restricted abortion – prohibitions on keeping a common bawdy-house (brothel), living off the avails of prostitution, and communicating for the purpose of prostitution in public. At a time when the Robert Picton case (a British Columbia serial killer who preyed on prostitutes) was making national headlines, Himel said the restrictions were unconstitutional as they violated the “security of the person” because prostitutes would be forced to work on the streets outside the protection of the law and therefore put themselves in harm’s way.

In a 3-2 decision, the Ontario Court of Appeal acknowledged that Canada has “no law that prohibits a person from selling sex and no law that prohibits another from buying it.” The legal question, therefore, was not whether prostitution should be permitted, but whether the restrictions were justified. Justices David H. Doherty, Kathryn N. Feldman, and Marc Rosenberg, upheld Himel’s decision allowing brothels although it would not take effect for 12 months as the judges invited Parliament to rewrite that section of the law or appeal the decision. The Court of Appeal also upheld the overturning of the restriction on “living off the avails of prostitution” but said it would not take effect for 30 days although they provided a restriction of their own: it would remain illegal in “circumstances of exploitation.”

However, the court over-ruled Judge Himel’s decision to strike down the communications restriction.

Justice James C. MacPherson and Eleanore A. Cronk dissented in part, disagreeing with the majority over the issue of the communications restriction. MacPherson and Cronk wanted to uphold Himel’s overturning of that restriction, also.

The case was brought forward by two prostitutes Amy Lebovitz, deputy director of the Sex Professionals of Canada and Valerie Scott, SPOC’s legal counsel, and professional dominatrix Terri-Jean Bedford. Bedford has been the face of the challenge and the camera-happy former hooker regularly appears in court and before the television cameras in black leather while sporting a whip.

Both Canadian Justice Minister Rob Nicholson and Ontario Attorney General John Gerretsen have said that they will review the decision before deciding how to proceed, however neither the federal government nor the province of Ontario had announced whether they would appeal Bedford v. Canada (Attorney General) by the time The Interim went to press.

REAL Women of Canada issued a press release saying they were “disappointed” in the decision and called upon the attorneys general to appeal the decision. National vice president Gwen Landolt condemned how “the liberal court” ignored “the views of Parliament in this case.”

Landolt said that prostitution is “inherently dangerous” and that moving the sex trade indoors will not make is safe. She also condemned the implicit message the ruling sends that prostitution is a legitimate transaction. “Prostitutes should not be encouraged to engage in this activity by way of brothels or otherwise,” Landolt said in the statement. She pointed to evidence from Australia, the Netherlands, Spain, and Sweden, indicating that the legalization of brothels “increases the number of individuals involved in prostitution, both on the streets as well as in brothels.”

REAL Women was an intervener in the case at both the Superior Court and Appeal levels.

The Christian Legal Fellowship, which was also an intervenor in the case, was “disappointed in the decision,” which it says “ignores Parliament’s disapprobation of prostitution and the harms it causes both to prostitutes and our communities.” The Catholic Civil Rights League, another intervenor, also condemned the decision.

Don Hutchinson, vice president and legal counsel for the Evangelical Fellowship of Canada said he was “deeply concerned” with the decision because it “fails to protect women from exploitation” and “could lead to a situation in Canada where the most vulnerable are put at greater risk of violence, exploitation and trafficking.”

Hutchinson explained that the Ontario Court of Appeal decision “was couched in the concept repeated page after page in the decision that, and I quote, ‘In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it’.”

The EFC has been promoting the Swedish model for battle the problem of prostitution by focusing law enforcement measures on the demand side by penalizing those who procure the services of prostitutes. “Canada needs new laws rather than simply trying to amend existing laws,” Hutchinson said.

The Institute of Marriage and Family Canada warned in a press release that rather than making prostitution safer, legalization often leads to a surge in criminal activity. The IMFC noted in a press release that after prostitution was legalized in Amsterdam, “big crime organizations” got involved in trafficking women to meet the demand for the selling of sex, as well as other criminal activities.

Both the EFC and IMFC condemned the court’s failure to recognize that many women who enter the sex trade profession are vulnerable. The IMFC said the decision “belies the realities facing the vast majority of prostitutes in Ontario today.” Noting that many prostitutes are drug addicts or were sexually abused in their past, many feel forced into prostitution. “Prostitution is inherently dangerous and the legal changes that are currently being made in Ontario will not change that.”

Andrea Mrozek, IMFC’s manager of research and communications said, “Above all, the law should not in any way, shape or form allow men to buy women’s bodies. There will be no equality in Ontario so long as we sanction that,” she said.

In the EFC press release, the organization’s policy analyst, Julia Beazley, said, “Surveys of women in prostitution here in Canada and in other nations have consistently found that upwards of 90 per cent of prostituted women would get out if they could. There would be no justice in normalizing and legitimizing abuse and exploitation.”

Beazley argues that attempting to combat human trafficking is pointless if “the end point of most trafficking, which is prostitution” is being accepted in law. She said, “We must be unambiguous in defining prostitution as a form of violence, abuse and control of vulnerable women, children and men.”

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