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Canadian Supreme Court Voids 3 Anti-Prostitution Laws

Even though prostitution is legal in Canada, the high court found the 3 laws made the profession more difficult and less safe

Canadian Supreme Court Voids 3 Anti-Prostitution Laws

OTTAWA—The Supreme Court of Canada today unanimously struck down three laws aimed at decreasing the public presence of prostitutes across the country. The laws, which made it illegal to run a "bawdy-house"—what Americans would term a brothel, illegal to live off the "avails" of prostitution—what Americans would call pimping, and illegal to solicit customers on the street, were all struck down as violations of Canadians' "fundamental rights" under the Canadian Charter. However, in order to give Parliament a chance to draft new prostitution regulations, the high court delayed implementation of its ruling for one year.

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"[E]ven accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution—the exchange of sex for money—is not illegal," wrote Chief Justice Beverley McLachlin. "The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different."

Specifically at issue are actually four sections of the Criminal Code: Sections 197.1 and 210, relating to bawdy-houses; 212, living on the avails; and 213, communication in public for the purpose of engaging sexual services, all of which the high court found to be in violation of the Canadian Charter of Rights and Freedoms, which "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Some of those rights include "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," as well as "the 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."

The case was brought both nationally and in the province of Ontario by Toronto-based dominatrix Terri-Jean Bedford, current working prostitute Amy Lebovitch and former prostitute Valerie Scott, who argued that the laws made their professions less safe.

"The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity," wrote the Chief Justice. "They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third-party johns and pimps, or prostitutes' so-called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.

"[T]he law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative relationships, such as receptionists or accountants who work with prostitutes," the decision continued. "The law is therefore not minimally impairing... The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes."

While the government attorneys left the courthouse without commenting, the three appellants and their attorney, Alan Young, were on hand to make statements and answer questions.

“Wow! Yes! Great day for Canada and Canadian women from coast to coast," stated Terri Jean Bedford, cracking the whip she'd brought with her for the occasion. "Now the government must tell Canadians, all consenting adults, what we can and cannot do in the privacy of our own home, for money or not, and they must write laws that are fair."

This is "the first time in Canadian history that sex workers are truly persons, we are truly citizens of this country," said Valerie Scott. "We will be able to work with Canada Revenue Agency, occupational health and safety, workers compensation ... pension plans. Yes!"

However, Scott added that Parliament should not attempt to restrict the profession of prostitution even further, and should consult current and former prostitutes in drafting legislation that will affect the working women.

"Politicians, though they may know us as clients, they do not understand how sex work works, they won’t be able to write a half-decent law; it will fail," Scott warned. "Sex workers must have a lot of input on how any new laws are written."

If Parliament fails to enact, within a year, measures to replace those that were struck down, the Supreme Court's decision will take effect, allowing prostitutes to form and work in brothels, hire bodyguards, accountants and even receptionists, employ closed-circuit monitoring of the house's activities and even invite potential customers they meet in public places back to the house for some paid pleasure.

However, Federal Justice Minister Peter MacKay stated that the government is reviewing the court's decision, and that they are "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons. We are committed to the safety of all Canadians and the well-being of our communities."

The Canadian Supreme Court's decision (.pdf) can be found here.






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Mark Kernes

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