From the Globe and Mail.
In a landmark decision Monday, the court said that prostitution is extremely dangerous work where inherent risks are multiplied by laws preventing prostitutes from working together under one roof or hiring security staff.
Commencing next year, a five-judge panel said unanimously, prostitutes in any part of the province can work legally in brothels that will be operated like ordinary businesses.
As of April 25, they can engage bodyguards or security staff.
The court left intact just one of three key provisions that had been challenged by three current or former prostitutes. It said that communicating in a public place for the purposes of prostitution will remain illegal.
Yet, even that provision narrowly escaped being struck down.
In the court’s only point of disagreement, Mr. Justice James MacPherson and Madam Justice Eleanore Cronk argued that the communication law is unacceptable because it forces street prostitutes to hurriedly negotiate with customers without first being able to size them up.
The refusal of the three other judges to strike down the communication law will likely go a long way to still the fears of politicians and residents who worried about an influx of prostitutes overtly propositioning prospective clients in the streets.
The Crown will doubtless apply for a stay from the Supreme Court. But until they do – and until and unless the Supreme Court grants one – the decision will take effect in a year.
The Ontario appeal court said in Monday’s decision that the bawdy house provision must be struck down in its entirety.
However, it said that it had been able to remodel the pimping law by adding a single phrase. It said that it will remain illegal to live off the avails of prostitution, but only “in circumstances of exploitation.”
The change will allow police to prosecute violent and manipulative pimps while at the same time permitting prostitutes to engage drivers or security staff to protect them, the court said.
‘I Feel Like a Citizen’
The decision was hailed as a historic victory by the litigants.
“It’s so nice to feel that we have been brought into society,” said Valerie Scott, legal coordinator of Sex Professionals of Canada. “I feel like a debutante. I feel like a citizen.”
Nikki Thomas, executive director of SPOC, told reporters it is time for federal, provincial and municipal politicians to sit down with prostitutes’ representatives and work out regulatory schemes that will keep workers and their clients safe and healthy.
Ms. Thomas said that prostitutes are well on the way to being normal citizens who file income taxes, purchase property and investments, and go about their employment without disturbing others.
“We are not going to have fire and brimstone and sex workers raining down from the sky,” she said.
Ms. Scott added that brothels are nothing new; they have existed in the shadows since time immemorial. “There is a brothel on every block in every city, and there always has been,” she said.
The SPOC spokesmen said that any renewed attempt by Parliament to reconstitute the prostitution laws in conformity with the Court of Appeal decision would be a terrible mistake. They were particularly critical of the notion of red light districts, saying they have been a failure in countries that attempted to introduce them.
“Any form of criminalization pushes the industry underground and gives opportunities for predators,” Ms. Thomas said.
However, Brenda Cossman, a University of Toronto law professor, said that on account of the one-year suspension of the bawdy house ruling and the prospect of an appeal to the Supreme Court of Canada, municipalities are unlikely to get serious about accommodating brothels in the short term.
“Of course, what they should do is strike some expert panels to explore how municipalities in countries with legalized prostitution have responded,” Prof. Cossman said. “There is a broad range of potential regulatory responses, some of which would protect the rights of sex workers and some of which would do as much damage as the current criminal laws.”
The lawyer who spearheaded the constitutional challenge – York University law professor Alan Young – told a press conference that it has changed the face of prostitution law forever.
“Six out of six judges have so far have concluded that the law does not work and is hurting people,” Prof. Young said. “This is something the government of Canada should have been addressing over the past few decades. Now, they have been called out by the Ontario Court of Appeal.”
Prof. Young urged the federal and Ontario governments not to waste time and money by appealing the decision to the Supreme Court of Canada. But since an appeal is inevitable, he said, the litigants can be counted upon to throw themselves into striking down the communication law once and for all.
Prof. Young added that Monday’s decision means the bawdy house law is, in effect, unenforceable. If any further charges were laid under it, he said they would be adjourned pending a decision from the Supreme Court of Canada. Even if the Supreme Court were to ultimately uphold the law, Prof. Young said, the charges would be so old that they would be tossed out as violations of the Charter right to a speedy trial.
Criticism of the decision came from two very different camps Monday – those who said it went too far and those who said it fell short of the mark.
An angry, former prostitute who showed up at Prof. Young’s press conference told reporters that the decision will prevent police doing “sweeps” of brothels in search of under-aged prostitutes.
“How are they going to know if there are under-aged prostitutes in there?” said the ex-prostitute, Katerina MacLeod, who maintained that all forms of prostitution ought to be illegal.
“Most women in the sex trade have been victims of sexual abuse,” she said. “They feel worthless and they don’t know how to get out.”
On the other side of the divide, advocates for prostitutes expressed varying degrees of disappointment that the Court of Appeal feel one judge short of striking down the communicating law.
“We are very encouraged by the fact that the court recognized the importance of allowing sex workers to work indoors and in a collective environment” said Katrina Pacey, a lawyer with Vancouver’s Pivot Legal Society. “But we have our work cut out for us as intervenors when this matter goes to the SCC because it is essential that the law no longer target street-based sex workers who face the reality of violence and murder every day”
Activists at a Toronto organization known as Maggie’s: Toronto Sex Workers Action Project, said the judges seriously erred by leaving street prostitutes unprotected, eking out a highly-dangerous existence on the extreme margins of society.
“The vast majority of all prostitution arrests are under the communication law,” said Emily Van Der Muelen, an assistant professor in Ryerson University’s Department of Criminal Justice and Criminology. “The failure to strike down the communication law means that the most vulnerable sex workers will continue to face arrest, police harassment, prosecution and violence.”
Kara Gillies, a sex worker and activist with Maggie’s, said the continued existence of the communication law represents a severe risk to prostitutes who work the streets.
“It is not tenable to have a safe place to see a client if you can’t screen him first or clearly set out what you offer, your rates and your safe sex requirements,” she said. “Further, many street-based workers don’t have access to an indoor place to work.”
Carissima Mathen, a University of Ottawa law professor, said it was legally significant that the court dispensed with arguments that the state is not accountable for the shortcomings in the law and prostitution is already an inherently unsafe activity.
Prof. Mathen noted that the court also rejected arguments that the prostitution laws were linked by a common goal of eradicating prostitution itself.
“The Court also said that such an objective could be valid; it just wasn’t borne out by the evidence here,” she added. “This leaves some room for Parliament to come back with a new law that does have that purpose.”
The other three judges presiding in the case were Mr. Justice David Doherty, Madam Justice Kathryn Feldman and Mr. Justice Marc Rosenberg.
In the one area of disagreement – the law that prohibits communicating for the purposes or prostitution – the three majority judges said that the provision has largely worked to prevent disorder in the streets and neighbourhoods.
Eliminating street prostitution has prevented men and women from being subjected to unwanted solicitation and has helped police control drug trafficking, public intoxication and organized crime, they said.
The three judges acknowledged that the law may prevent prostitutes from being able to size up potentially dangerous customers before jumping into their cars. However, they reasoned that, with indoor prostitution now being made legal, there will be strong incentives for outdoor prostitutes to move into homes or brothels.
All five judges said the law prohibiting the operation of bawdy houses “is grossly disproportionate” to its stated aim of avoiding disorder and maintaining public health standards.
“The record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control,” they said.
The court emphasized that prostitutes are forced to break the law if they work indoors. The risk of being killed or maimed by violent customers is undeniable, they said.
“The impact on those put at risk by the legislation is extreme,” the court said. “We have no hesitation endorsing the application judge’s holding that the impact of the bawdy house prohibition on prostitutes, and particularly street prostitutes, is grossly disproportuonate to its legislative objective.”
The judges conceded that brothels can be used to conceal underaged prostitutes or those trafficked from foreign countries, but said those ills must be attacked as best the police are able.
“The advantage of investigating these cases through the indirect method of bawdy house investigations has to be measured against the harm faced by prostitutes because they cannot work in a safe environment,” the court said.
The court stressed that there is nothing preventing Parliament from enacting new laws provided they comply with the Charter rights of prostitutes.
At the same time, it gave short shrift to Crown arguments steeped in morality and the belief that prostitution itself is a form of unacceptable exploitation.
The Ontario government is considering seeking leave to appeal the decision to the Supreme Court of Canada. Ontario Attorney General John Gerretsen said he does not agree with the position taken by Ontario’s top court, and plans to discuss the matter with his federal counterparts, because it is their law that has been called into question.
“Our main concern is that people feel safe in their communities, feel safe in their homes, and this kind of issue may very well need legislative action,” Mr. Gerretsen told reporters at Queen’s Park on Monday, shortly after the court released its decision.
Progressive Conservative Leader Tim Hudak said the Ontario government should definitely appeal the decision.
“This is not something that is in keeping with the values of the vast majority of Ontarians,” Mr. Hudak told reporters.
The overall aim of constitutional challenge was to attack what the litigants claimed was a historical illogicality with hazardous consequences. Namely, prostitution is perfectly legal, yet, virtually every form of conducting acts of prostitution are illegal.
The Court of Appeal agreed today that the provisions under attack were not truly aimed by legislators at eradicating prostitution, as government lawyer had argued in the appeal.
Rather, they said the purposes of the provisions were to eliminate some of the undesirable social consequences of sex work – neighbourhood disruptions and the exploitation of vulnerable women by pimps.
The court also had little to say about Crown arguments that prostitutes are autonomous workers who make an informed decision to engage in a dangerous trade, knowing the risks that face them.
“This submission must fail,” it said. “It 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.”
By making prostitution legal, the court emphasized, Parliament effectively pronounced that, “it is as legal as any other non-prohibited commercial activity,” the judges said. However, they agreed with Ontario government lawyers that a future legislative scheme could properly seek to reflect social values such human dignity and equality of women, “but that is not the legislative scheme currently in place,” it said.
At the same time, the court said that by trying to reformulate the intent of a musty law prohibiting “bawdy houses,” government lawyers had engaged in, “a wholesale re-evaluation of ancient legislation to accord with modern values.”
They were also unimpressed by Crown arguments that some prostitutes would continue to operate outside the law even if prostitution was decriminalized.
The court’s decision repeatedly endorsed the approach Ontario Superior Court Judge Susan Himel took at the original trial. However, the appellate judges emphasized that they did not merely adopt her reasoning and conclusions; they examined the evidence carefully in order the reach their own findings.
It said that 88 volumes of evidence generated during the trial resulted in “very strong” evidence that the existing laws force prostitutes to work in the shadows, where they are significantly more prone to becoming victims of violence.
“Everyone agrees that prostitution is a dangerous activity for prostitutes,” the court said. “It seems obvious that it is more dangerous for a prostitute if she goes to some unknown destination controlled by the customer, rather than working at a venue under the prostitute’s control at which she can take steps to enhance safety.
“The advantages of ‘home field’are well understood by everyone.”