TORONTO – The Court of Appeal for Ontario has swept aside some of the country’s anti-prostitution laws saying they place unconstitutional restrictions on prostitutes’ ability to protect themselves.
The landmark decision means sex workers will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or “bawdy houses,” while “exploitation” by pimps remains illegal.
However, openly soliciting customers on the street remains prohibited with the judges deeming that “a reasonable limit on the right to freedom of expression.”
The province’s highest court suspended the immediate implementation of striking the bawdy house law for a year to allow the government an opportunity to amend the Criminal Code.
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The government’s attempt to salvage its prostitution prohibitions, “implies that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal enterprises,” three majority justices of the five-judge panel wrote in their decision.
“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. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land.”
The appeal stems from the legal oddity that while prostitution was not illegal, many activities surrounding it were, including running a brothel or bawdy house, communicating for the purpose of prostitution and living on money earned by a prostitute.
That disconnect led to a constitutional challenge mounted by three sex trade workers who say the laws prevented them from taking basic safety precautions, such as hiring a bodyguard, working indoors or spending time assessing potential clients in public.
In 2010, Ontario Superior Court Judge Susan Himel agreed with them, ruling the increased danger for prostitutes was “simply too high a price to pay for the alleviation of social nuisance.”
The debate fell across a backdrop of carnage against street prostitutes, including serial killer Robert Picton and missing women across Alberta.
The federal and provincial governments appealed for the reinstatement of the three laws that remained in place until Monday’s decision.
It took nine months of deliberation after a week of intense oral arguments last summer and stacks of written material — more than 25,000 pages of evidence in 88 volumes.
Witnesses included current and former prostitutes, police officers, a prosecutor, social and activist organizations, a politician and a journalist.
In the end, three appeal judges — David Doherty, Marc Rosenberg and Kathryn Feldman — formed a majority opinion with two partial dissenting opinions by James MacPherson and Eleanore Cronk.
The ruling looked for a balanced approach:
The prohibition on bawdy houses, or brothels, in Section 210 of the Criminal Code, was deemed unconstitutional and must be struck within 12 months unless amended by Parliament;
The prohibition against living on the avails of prostitution in Section 212 of the code was deemed a partial constitutional violation because it criminalized non-exploitive commercial relationships between prostitutes and others; the justices’ solution is to limit the law’s application only to pimps, or those living off a prostitute’s income “in circumstances of exploitation.” This reworked provision takes effect in 30 days;
The communication law in Section 213, designed to keep the sex trade off the street and away from public view, remains untouched and in full force.
The two judges’ offering a partial dissent would have also struck down the communicating law, saying: “the communicating provision chokes off self-protection options for prostitutes who are already at enormous risk.”
The split and balanced decision, however, is likely to do little to soothe public anxiety over the changes.
From moral and ethical pleas to the stark nitty-gritty of street solicitation, the court earlier heard impassioned arguments from 19 groups as divergent as the Downtown Eastside Sex Workers United Against Violence Society and the Catholic Civil Rights League.
The thorny issue transcended traditional ideological divides, with conservative religious groups finding strange allies in feminist activists in their support of retaining the prostitution restrictions.
Paramount to the case was that the laws endangered sex workers, a violation of the Charter protection to “life, liberty and security of the person.”
“On the facts as found, the added risk to prostitutes takes the form of an increased risk of serious physical harm or perhaps even worse. Any real increase in that kind of risk must impair the security of the person,” Monday’s majority ruling says.
Alan Young, a noted constitutional lawyer representing the sex trade workers Terri-Jean Bedford, 52, Valerie Scott, 53, and Amy Lebovitch, 33, argued that the government had a responsibility not to increase the potential harm against its citizens, even those it deems engaging in an unsavoury trade.
It was not about a constitutional right to prostitution, Mr. Young argued, but rather a right to security of the person, which the laws interfered with.
“Forget the law for a moment, this is ethically unsound — no government should be able to jeopardize the safety of its citizens just to send a message. Nothing is safe, completely safe. But can safety be enhanced by moving it indoors? Absolutely,” he argued.
Michael Morris, lawyer for the Attorney-General of Canada, had argued that it was the act of prostitution itself, not the laws, that created danger among sex trade workers.
“The harm being caused is not by the state. The state is not the agent of harm,” Mr. Morris told court. “The purpose of these laws is to discourage and deter people from engaging in these activities.”
Among the intervener arguments the justices heard was the view that prostitution is immoral and must be eradicated through strict laws, even if that leaves sex workers vulnerable.
Parliament intended to eradicate prostitution because it is “an attack on the fundamental values of modern Canadian society,” argued Ranjan Agarwal, a lawyer representing the Christian Legal Fellowship, Catholic Rights League and REAL Women of Canada.
Contrasting that, Cynthia Petersen, a lawyer representing Maggie’s, a Toronto sex workers group, and POWER, an Ottawa sex worker rights group, argued the laws were needlessly killing sex workers.
Prohibiting communication for the purposes of prostitution may have been designed to scoot unseemly solicitation out of sight, but it prevents sex workers from discussing with customers what acts they are willing or unwilling to offer before they are alone and isolated, she said.
Whether a prostitute insists on condom use or will allow intercourse or anal sex or photography or how many customers will be participating are all relevant discussions, she said.
The decision is binding in Ontario only but will undoubtedly prompt similar challenges in other provinces.
Earlier, both sides promised an appeal to the Supreme Court if the court decision went against them.
Any decision by the Supreme Court of Canada on the issue would apply country-wide.
“It remains open to Parliament to respond with new legislation that complies with the requirements of the Charter,” the decision says.