Ontario court okays brothels (sort of)
We’ll have our own take tomorrow on the Ontario Court of Appeal decision which appears to have legalized brothels but not solicitation. (The decision can be found here). Here’s news coverage of the decision by justices Doherty, Rosenberg, and Feldman. Our coverage of the case early on in the process can be found here and here. Also, the Evangelical Fellowship of Canada responds. Below is a Christian Legal Fellowship press release issued after the decision was rendered yesterday carefully dissecting what the decision does and does not do and the legal reasons for it; the EFC’s vice president and legal counsel Don Hutchinson explains the decision in a paragraph:
“Here’s the decision in a nutshell,” continues Hutchinson. “The court gave the federal government twelve months to reform the provision against prostitutes operating out of brothels, massage parlours and other forms of common bawdy houses; which does nothing to protect the rank and file exploited women, men and children working on the street. The court redrafted the living on the avails of prostitution section to only apply to those doing so in an exploitive way; which accommodates the rare few with the capacity to structure a business with support staff. And, the court upheld the law against communicating for the purposes of prostitution. All of this 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.’”
We’ll have our own comments tomorrow. We encourage you to carefully read the CLF press release below.
For Immediate Release from the CHRISTIAN LEGAL FELLOWSHIP
March 26, 2012
DECISION RENDERED IN PROSTITUTION CHALLENGE:
Some aspects of prostitution laws found constitutional; Parliament may respond with new legislation to protect vulnerable
Toronto, ON – Today, the Ontario Court of Appeal released its decision in Bedford v. Canada otherwise known as the Prostitution Challenge.
Speaking for the majority, Justice Rosenberg overturned Justice Himel of the Ontario Superior Court in one instance and partially in the remaining provisions, essentially finding as follows:
(1) the communicating provision, commonly known as street solicitation, in s. 213(1)(c), was upheld as being constitutional;
(2) the “living on the avails” provision, commonly known as “pimping”, in s. 212(1)(j) was found to be unconstitutional. To remedy this, the court read in words to clarify that the prohibition applies only to those who do so “in circumstances of exploitation”; this to take effect within 30 days;
(3) the “common bawdy-house” provision in s. 210 was found to be unconstitutional. To remedy this, the court struck “prostitution” from the definition of “common bawdy-house” and suspended its decision for twelve months to give Parliament opportunity to draft a new “Charter-compliant” bawdy-house provision.
Christian Legal Fellowship (CLF) intervened in the case at both court levels in order to protect vulnerable individuals who may find themselves forced into prostitution.
“We are pleased the court has taken a strong position against street solicitation,” states Ruth Ross, CLF Executive Director and General Legal Counsel. “In so doing, the court has affirmed that the lower court was bound by the 1990 Prostitution Reference which upheld street solicitation as a reasonable limit on the right to freedom of expression under s. 2(b) of the Charter.”
With respect to the Court of Appeal’s decision as a whole, CLF is disappointed in the decision, which ignores Parliament’s disapprobation of prostitution and the harms it causes both to prostitutes and our communities. Still, there are some positive aspects to the decision. The court did not strike down the “living on the avails” provision in its entirety but instead recognized its importance in protecting those who are exploited by prostitution. Further, the Court of Appeal acknowledged that “prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety”; it is not the court’s role to engage in that debate. The court also recognized the need for a robust application of stare decisis which it stated was particularly important in the context of Charter litigation.
At this time, it remains uncertain whether the Attorneys General will appeal. CLF is open to the possibility of participating in a Supreme Court of Canada appeal with its intervention partners should the Attorneys-General pursue this option. In the meantime, the Christian Legal Fellowship encourages Parliament to consider all options open to it, including the possibility of new legislation that protects the vulnerable while complying with the requirements of the Charter.
The majority of the court, comprised of Justices Rosenberg, Doherty, and Feldman, extended the stay of the lower court’s decision for 30 days from the date of the release of these reasons so that all parties may consider their positions.
The case, first heard October 2009, was brought by three sex workers on the grounds that the Criminal Code provisions against operating a bawdy house, living off the avails of prostitution, or communicating for the purposes of prostitution violated s. 7 of the Charter of Rights and Freedoms. On September 28, 2010, Justice Himel of the Superior Court of Ontario struck down the Criminal Code provisions as unconstitutional holding that they infringe ss. 2(b) and 7 the Charter in a manner that can not be justified in a free and democratic society, essentially because they put the safety of sex workers at risk.
Christian Legal Fellowship, the Catholic Civil Rights League, and REAL Women of Canada (the interveners) filed a joint submission requesting the Criminal Code provisions be upheld, presenting evidence explaining Canada’s historic and longstanding position against prostitution, and revealing the importance of these provisions in maintaining Canada’s moral and social fabric. Although morality was in issue in the proceeding, no other party, including the other approved interveners, brought this perspective to the matter. The Ontario Court of Appeal heard arguments in mid-June, 2011.
The interveners were represented by Robert W. Staley, Derek J. Bell and Ranjan K. Agarwal, all of Bennett Jones LLP.