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Ontario court recognizes health and safety risks associated with sex-trade laws, and strikes them down

red-lightWe wrote about a controversial challenge to Canada’s prostitution laws last year, and Judge Susan Himel of Ontario’s Superior Court of Justice has finally released her decision—in favour of the sex-trade workers who raised the challenge based on their constitutional right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In the 131-page decision, released on Tuesday, Judge Himel said, “I have found that the law as it stands, is currently contributing to the danger faced by prostitutes.”

The topic of prostitution is about more than whether or not we should allow the practice in society. For whatever reason, prostitution is legal across Canada; that is, prostitution is not included as a criminal offence in the Criminal Code of Canada. However, the Code does include laws that make it almost impossible to practise the profession. Specifically, the Code prohibits public communication for the purposes of prostitution (i.e., soliciting), living off of the avails of “the prostitution of another person” (e.g., procuring, securing or managing) and keeping or using a common bawdy house.

This leads to the difficult situation wherein the sections of the Code “dealing with prostitution in private dwellings and … with prostitution in public places together criminalize almost every transaction leading up to an act of prostitution, even though they do not criminalize the actual exchange of sexual services for money.”

So where is our interest? The three sex-trade workers who brought the complaint to court claim that the contrary law forces them and others in the sex industry to work “furtively in an atmosphere of constant secrecy and danger” and prevents them from using safeguards such as screening clients, hiring security guards and drivers and operating indoors, where they could use monitoring services.

One expert witness for the complainants pointed out that, “It is estimated that street sex work makes up less than 20 per cent of prostitution in Canada, but they appear to account for more than 95 per cent of the homicide victims and missing women.”

According to the Canadian Centre for Justice Statistics, the number of homicides against prostitutes has not changed over the past two decades. “From 1991 to 1999, police reported 72 prostitute slayings. From 2000 to 2008, there were 70.”

With the law in its current state, if a sex-trade worker suffers violence at the hands of a client, she or he would have to make a difficult decision if she or he wanted to seek the protection of police, because that would likely mean admitting to one of the prostitution-related crimes. Visiting a hospital would involve an similarly difficult question.

If the related acts were legal, workers wouldn’t have these worries. Moreover, they would be able to offer evidence to police to enable them to catch violent johns.

Judge Himel found that, “These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.”

After hearing the verdict, Alan Young, counsel for the complainants said, “The bottom line is we managed to prove from the Criminal Code a bunch of archaic offences that were actually putting sex workers in harm’s way. … Regardless of what you think of sex work, the law should never expose women to danger.”

Since this ruling challenges the Criminal Code, it would take effect across the country if the Supreme Court upholds it.

Federal Justice Minister Rob Nicholson has confirmed that the government will appeal the decision, so there’s not much more to say at the moment. We’ll keep our eyes on this case, though.

Adam Gorley
First Reference Human Resources and Compliance Editor

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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