When the prostitution law challenge arose in 2009, we examined the debate around decriminalizing the oldest profession in the world and the controversial question of how to balance the law with the health and safety of prostitutes.
The key issue is the contradictory Criminal Code laws that make performing sex for money (prostitution) legal in Canada, while restricting where prostitutes can practise the trade, and severely limiting the people with whom they can associate.
Moreover, the sex-trade workers in this case argue that restrictions on their work activities are a violation of their rights under the Charter of Rights and Freedoms to security of the person and freedom of expression.
Specifically, the Criminal 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)
- Keeping or using a common bawdy house (i.e., prevents prostitutes from offering services out of fixed indoor locations such as brothels or their homes)
Prostitution is a potentially dangerous activity. Sex-trade workers claim that the government is interfering with their ability to protect themselves by criminalizing what are rudimentary and obvious steps they could take to reduce the risk of physical harm to them while they are engaged in the lawful activity of prostitution. In essence, they assert that the challenged Criminal Code provisions interfere with their personal security by forcing them to choose between the substantial added safety risk that comes with compliance with those provisions and the risk of incarceration that comes with non-compliance with those same provisions.
On September 28, 2010, the Superior Court, without deciding whether or not there is a constitutional right to sell sex or the right policy model (criminalization, regulation or abolition), agreed with the plaintiffs’ arguments, ruling that the Criminal Code provisions relating to prostitution contribute to the danger faced by sex-trade workers in Ontario.
Moreover, Justice Susan Himel ruled that the laws that forbid running a bawdy house, communicating for the purpose of prostitution, and living off the avails of prostitution were unconstitutional and are not in accord with the principles of fundamental justice.
The federal and Ontario government appealed the ruling.
On March 26, 2012, the Ontario 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.
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. Parliament has, however, enacted laws that indirectly restrict the practice of prostitution by criminalizing various related activities.
The Court overturned two of the three sections of the Criminal Code‘s prostitution law on the grounds that they are unconstitutional.
The ruling hinged in large part on the finding that the provisions limit sex workers’ right under Section 7 of the Charter to security of the person by exposing them to physical harm while engaging in the lawful activity of prostitution. The judges wrote:
On the facts as found by the application judge, each of the provisions criminalizes conduct that would mitigate, to some degree, the risk posed to prostitutes. On those findings the relevant Criminal Code provisions, individually and in tandem, increase the risk of physical harm to persons engaged in prostitution, a lawful activity.
The Court made the following rulings.
The provisions prohibiting “keeping or using a common bawdy house” (section 210) are unconstitutional in their current form. The Court gave the federal government one year to make this section consistent with the modern values of human dignity and equality, specifically to consider pressing social problems, while also complying with the Charter.
The “living off the avails of prostitution” provision (section 212(1)(j)) is overbroad and unconstitutional, but does not need to be struck down as it can be clarified to keep the intent of the law. As a result, the section should pertain only to those who do so “in circumstances of exploitation.” The provision should be amended to read:
Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence…
In the Court’s view, reading in the phrase “in circumstances of exploitation” provides a sufficient degree of precision to remedy the constitutional problem. It introduces the requirement that an accused person has unfairly taken advantage of a prostitute in their dealings. Thus, where an accused is providing services (e.g., security, management) to the prostitute for the purpose of prostitution, absent proof of exploitation, no offence would be committed.
This change will come into effect in 30 days.
These changes will allow sex-trade workers to use safeguards such as screening clients, hiring security guards and drivers and operating indoors, where they could use monitoring services, among other benefits.
However, section 213(1)(c), which prohibits communicating for the purpose of prostitution in public remains valid. This section prevents prostitutes from offering their services in public, and particularly on the streets.
Both Justice Minister Rob Nicholson and Ontario Attorney General John Gerretsen indicated that their respective departments would review the decision before deciding how to proceed.
“As the Prime Minister has said, prostitution is bad for society and harmful to communities, women and vulnerable persons,” Nicholson said in a statement released by his office. “We are reviewing the decision and our legal options.”
Full force to the Supreme Court of Canada, I think!?
First Reference Human Resources and Compliance Managing Editor
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