Court readies for landmark prostitution case

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susan davis
Court readies for landmark prostitution case Sunday, June 12, 2011   Court readies for landmark prostitution case News Staff

Date: Sun. Jun. 12 2011 2:17 PM ET

Canada's sex trade will be back in the spotlight this week, as the Court of Appeal for Ontario hears a landmark case that could decriminalize prostitution in the province and set a precedent countrywide.

Last year, Ontario Superior Court justice Susan Himel struck down three key anti-prostitution laws -- communicating for the purposes of prostitution, living on the avails of prostitution and operating a brothel or a bawdy house -- opening the door for decriminalization of the industry.

But the ruling was put on hold pending an appeal by the federal and Ontario governments set to be heard by five justices over the course of five days this week.

As CTV legal analyst Steven Skurka explained in an interview with News Channel on Sunday, the argument hinges on whether current laws violate the Canadian Charter of Rights and Freedoms by forcing sex workers to choose between their liberty and their security.

"There's no question that it's dangerous work," Skurka said. "The question is whether these laws create that danger."

Arguing to strike the current laws, the Canadian Civil Liberties Association says it's wrong for the law to try to mitigate whatever risks are associated with prostitution, because other jobs that carry inherent risks are not subject to such restrictions.

"Even assuming that prostitution is inherently harmful, as the (governments) allege, this does not change the fact that the risks of physical violence against persons engaged in prostitution are increased by the impugned provisions," the association argues in court filings.

"It would be unconstitutional for the state to prohibit taxi drivers or airline pilots or police officers from taking basic precautionary measures to protect their personal security," the group says.

The B.C. and The Canadian and B.C. civil liberties associations, as well as a coalition of HIV/AIDS groups and several groups representing sex-trade workers, are among a total of 19 groups represented by seven interveners slated to argue the case before the court this week.

AIDs groups argue that a combination of the existing laws, sex workers' financial needs and their vulnerability to violence mean they can do little to argue with clients who refuse to use condoms, while sex worker groups say legislation infringes on their right to make personal decisions regarding their bodies.

Others, however, see the business and its relationship with the Criminal Code very differently.

According to a coalition of women's groups including the Canadian Association of Sexual Assault Centres and the Native Women's Association of Canada, making prostitution legal would only serve to protect the clients of prostitutes, "no matter how coerced, destitute or ill."

"It would be illogical and contrary to principles of fundamental justice to decriminalize men's prostitution of women in order to protect women from those same men," they write.

And a religious group that includes the Christian Legal Fellowship and the Catholic Civil Rights League sees the issue from another perspective altogether.

"Prostitution is disapproved of by every major religion. The position advanced by the interveners is not a fleeting view of a prudish minority or legal moralism," they argue. "If Justice Himel's decision is upheld, all members of society will likely be exposed to the effects and abuses of regularly practised prostitution and its indecencies."

For its part, the federal government will argue that prostitution is a "high-risk" activity that no one is obligated to engage in, and no government is obligated to protect.

Decisions rendered by the Ontario Court of Appeal would only hold sway in that province, but in Skurka's view, the case is unlikely to end there.

"I think this was a bold and courageous decision by this judge in Ontario," he said, suggesting there is a "very compelling case" that prostitutes compelled to ply their trade on the streets are in fact putting their lives at risk.

"It inevitably will go to the Supreme Court of Canada," he added, confident in his prediction the Court of Appeal will uphold the prior rulings.

Then it will remain to be seen whether courts in other provinces follow the Ontario precedent.

As it stands, the case only deals with adult prostitution offences and does not affect Criminal Code provisions involving people under 18.

With files from The Canadian Press


susan davis

i am a guest on CBC's the current tomorrow morning...have to be in studio at 4:30am.....eep!!


I watched the CTV interview last evening.  Your responses to Don Martin's questions were impressive.  He appeared unaccustomed to having anyone on the program talking common sense.  He looked caught off guard.

Boom Boom Boom Boom's picture

The CBC show P&P was less enlightening. The Conservative guy is hoping this case comes to Parliament, becuase the Cons with their majority will be happy to administer ther idea of justice. The panelists were Dean Del Mastro, Joe Comartin, and Hedy Fry. The Cons were outnumbered and outgunned on the panel, then there was the President of sex worker rights against the president of Real Women, that was no contest - the Real women pres just repeated talking points. If this goes to parliament, then any number of things can happen with a Con majority. The Real women prez wants prostition made illegal and the current status quo upheld.

Red Tory Tea Girl

Will the crown be calling Janice Raymond as a witness again? I thought that was a nice way to underline the dehumanization of women involved: Get a woman who has produced reports telling doctors not to treat women because she doesn't think them women... Better they should die. Which seems the intent of the current law.


[url= on Canada's sex-trade laws coming Monday[/url]


A ruling that could effectively end prostitution-related prosecutions in Canada comes down Monday as Ontario's top court weighs whether current laws are constitutional.

Essentially, the Appeal Court will decide whether three laws put sex-trade workers in danger by banning brothels, soliciting, and living off the avails of the sex trade.


Thanks for the reminder, Unionist. Can't wait for the decision. I have a hunch the Superior Court's judgment might be upheld, but you never know...


It's here.

The majority of the Court of Appeal (Doherty, Feldman and Rosenberg JJ.A.) finds:

- the "bawdy-house" provision to be unconstitutional and strikes it down, with a 12-month suspension of the declaration of invalidity;

- the "living on the avails" provision to be unconstitutional, but rather than striking it down as did the Superior Court, the Court of Appeal "read[s] in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation" (courts are generally reluctant to use this "reading in" form of constitutional remedy);

- the "communication" provision NOT to be unconstitutional, unlike the Superior Court.

Two of the Justices (MacPherson and Cronk JJ.A.) would have upheld the lower court judge's finding that the communication provision is unconstitutional.


Boom Boom wrote:

The CBC show P&P was less enlightening. The Conservative guy is hoping this case comes to Parliament, becuase the Cons with their majority will be happy to administer ther idea of justice.
If this goes to parliament, then any number of things can happen with a Con majority.

I doubt that Harper is much interested in debating this issue in parliament. It gives me a chuckle to think about it, as that would pretty much make iit open season for the media delving into MP's sexual procurement habits. Lol


I've read the dissent; it's solid stuff and it confronts the majority's flawed reasoning on the communication provision head-on. Here's to hoping the SCC is willing to seize upon it...

The dissent's position is summarized thusly at paragraph 344:

If, as my colleagues conclude, the bawdy-house and living on the avails provisions cannot survive the balancing exercise required by the gross disproportionality principle, then the communicating provision, with its equally serious – and perhaps worse – effects on prostitutes’ rights to life and security of the person, should not survive it either.


Has the Government responded yet? Laughing


Not yet as far as I can tell, but it's almost certain they'll appeal to the Supreme Court. I think there is a very good chance that the judgment be upheld at that level too.

I hope the applicants file a cross-appeal on the communication provision. It would be the right thing to reaffirm the lower court's decision and they have a solid foundation upon which they can rely in the two dissenting judges' reasons.

Catchfire Catchfire's picture


Ontario sex work judgment in 489 words

All five judges of the Court found that the security of the person and liberty rights of sex workers are impacted by the criminal code, and recognized the serious effects of these laws because of the ways in which they reduce the ability of individuals to make decisions and take steps to do their work more safely.

The five justices all found that the provision restricting “common bawdy houses” is grossly disproportionate and overbroad, and struck this provision down.  

The five justices also found that the provision restricting “living on the avails” of prostitution is overbroad because it would criminalize non-exploitive relationships, and held that this provision should only apply where there are “circumstances of exploitation.”

However, three of the five justices upheld the provision criminalizing communicating for the purpose of prostitution, holding that the purpose of the provision, reducing nuisance and harm to communities, is legitimate and must be weighed against the harms it causes.  

Two judges disagreed with the majority's decision regarding the communicating law and said, in their dissent, that they would have struck the communicating provision on the basis that it has a severe impact on street level sex workers.

They write: "The world in which street prostitutes actually operate is the streets, on their own. It is not the world of hotels, homes, or condos. It is not a world of receptionists, drivers, and bodyguards. The world in which street prostitutes actually operate is a world of dark streets and barren, isloted, silent places. It is  a dangerous world, with always the risk of violence and even death."


Red Tory Tea Girl

Well, the bawdy house provisions will definitely help reduce the need for solicitation, but still, this is half a loaf, and will again unfairly fall on the most vulnerable...


Here's to half a loaf.