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.
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 Pickton 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 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.
After the ruling was announced, two of the women who pressed the case and their lawyer praised the court for its foresight and understanding of such a controversial matter.
“The new spring has come for sex workers, a new era has been ushered in,” said Alan Young, a noted constitutional lawyer representing Terri-Jean Bedford, 52, Valerie Scott, 53, and Amy Lebovitch, 33.
“I am thrilled that the Court of Appeal has done the right thing,” he told a packed press conference at a downtown community centre. “They may not have gone as far as the Superior Court judge [in the case under appeal], but when you actually look at the result, they’ve done the right thing in terms of modifying the law so that sex workers will not face the same risks they face on a daily basis.”
Ms. Scott said the ruling “pretty much declared sex workers persons today. I didn’t think I would see that in my lifetime, but here we are… This is wonderful.”
Jonathan Kay: A worthy, measured blow for prostitution-law reform
Brothels should be legal in this country, which is the first step in making them safe. On street prostitution, however, the court was correct to say that judges must respect the state’s legitimate objective in preventing poor neighbourhoods from being turned into open-air sex markets.
Nikki Thomas, executive director of Sex Professionals of Canada, said all levels of government now needed to discuss with sex workers the regulatory framework for opening and running brothels and other aspects of the sex trade. As well, she said, the sex industry needs to convince the public there is no need for them to fear the new regime.
“We are human, we are taxpayers,” she said. “We are not going to have fire and brimstone and sex workers raining down from the sky.”
But after the smiles and laughter of the planned remarks, another point of view from former sex trade workers intruded.
Several former prostitutes angered by the decision, said the court’s ruling will prevent social workers and police from intervening to rescue underage prostitutes and sends the wrong message to children that prostitution is an acceptable career, several said.
“I worked the street for 15 years and this won’t keep anyone safe,” said Katrina MacLeod, who now works with Walk With Me, a group working to help women out of the sex trade. “It’s more than troubling, it’s disgusting.”
Bridget Perrier, tearful and angry, held up a metal coat hanger twisted into a baton, saying it is a tool known as a “pimp stick” — heated up under a flame and then used to whip and beat prostitutes.
“This is what my pimp used on me, every day. I was beaten with one of these. It’s not just these, it’s curling irons, Tasers, razor blades. I cannot give birth because my inner organs being used and abused from a young age. I entered the sex trade at 12 years of age and everyone needs to be shown a way out,” said Ms. Perrier, who now works for Sex Trade 101, another group helping women leave prostitution.
She called on anti-prostitution laws to be strengthened to stop men preying on vulnerable women, not loosened.
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.