Monday, March 26, 2012

An historic judgment moves sex workers' rights forward

The issues of Canada have drifted from my mind strikingly fast now that I'm in Honduras, but it all came rushing back to me this morning when I read the judgment handed down by the Court of Appeal in Ontario on Canada's sex work laws.
Here's the link to the decision if you want to read it in full, but I've put the meat of the ruling down below for those who prefer a summary. You can't go around declaring victory too quickly when it comes to court rulings, because this judgment is certainly going to end up in front of the Supreme Court of Canada given the federal government's position on this issue to date. Still, each new court ruling adds weight to the argument for decriminalization, and reminds Canadians again and again that it is against our own Constitution to treat sex workers so disgracefully.
That communication for the purposes of prostitution remains illegal is unfortunate, as that means that it's still illegal for sex workers to advertise their services. But the precedent has been set in Canada to restrict the advertising of other products - tobacco, alcohol, prescription drugs - so I guess the court felt it was reasonable to uphold that law.
What's most unfortunate about that is the communication law is used almost exclusively in Canada to harass and control street sex workers. People don't like it when a stroll develops in their neighbourhood, and criminal sanctions against communicating are a tool for moving sex workers along when the business settles in a particular place. But the big downside of the tense relationship between police and outdoor sex workers that develops as a result means some of the most vulnerable women in the country choose not to seek protection from police.
For those who are opposed to the existence of sex work, the judgment need not be taken as an endorsement of the industry. As this excerpt makes clear, at issue is whether Canada's laws around prostitution are increasing the danger to sex workers. And they are:
"In holding that the negative impact of the legislation on prostitutes is obvious, we do not mean to understate the complexities and difficulties of the social problems associated with prostitution. However, those complexities and the many possible legislative responses to them are not germane to the question at hand. Like the application judge, we are satisfied that the current legal regime, and specifically the challenged Criminal Code provisions, interferes with prostitutes security of the person."
The executive summary of the 148-page decision:

[1] For decades, and even for centuries, governments around the world have
grappled with prostitution and its associated problems. Some have opted for an
outright ban. Others have chosen to decriminalize and regulate certain aspects of
prostitution. Still others have criminalized the purchase, but not the sale, of sex.
[2] 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.
[3] At issue in this case is the constitutionality of three provisions of the
Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament‟s
response to prostitution:
1. Section 210, which prohibits the operation of common bawdyhouses.
This prevents prostitutes from offering their services out of fixed
indoor locations such as brothels, or even their own homes;
2. Section 212(1)(j), which prohibits living on the avails of prostitution.
This prevents anyone, including but not limited to pimps, from profiting
from another‟s prostitution; and
3. Section 213(1)(c), which prohibits communicating for the purpose of
prostitution in public. This prevents prostitutes from offering their services
in public, and particularly on the streets.
[4] In the court below, the application judge held that these provisions are
unconstitutional and must be struck down because they do not accord with the
Page: 7
principles of fundamental justice enshrined in s. 7 of the Canadian Charter of
Rights and Freedoms. She reasoned that the challenged laws exacerbate the
harm that prostitutes already face by preventing them from taking steps that
could enhance their safety. Those steps include: working indoors, alone or with
other prostitutes (prohibited by s. 210); paying security staff (prohibited by
s. 212(1)(j)); and screening customers encountered on the street to assess the
risk of violence (prohibited by s. 213(1)(c)).
[5] As we will explain, we agree with the application judge that the prohibition
on common bawdy-houses for the purpose of prostitution is unconstitutional and
must be struck down. However, we suspend the declaration of invalidity for 12
months to give Parliament an opportunity to redraft a Charter-compliant
[6] We also hold that the prohibition on living on the avails of prostitution
infringes s. 7 of the Charter to the extent that it criminalizes non-exploitative
commercial relationships between prostitutes and other people. However, we do
not strike down that prohibition, but rather read in words of limitation so that the
prohibition applies only to those who live on the avails of prostitution in
circumstances of exploitation. This cures the constitutional defect and aligns the
text of the provision with the vital legislative objective that animates it.
Page: 8
[7] We do not agree with the application judge‟s conclusion that the ban on
communicating in public for the purpose of prostitution is unconstitutional, and we
allow the appeal on that issue.
[8] The application judge‟s decision has been subject to a stay pending further
order of this court. As we will explain, we extend the stay for 30 days from the
date of the release of these reasons so that all parties can consider their
positions. The practical effect is:
The declaration of invalidity in respect of the bawdy-house provisions is
suspended for one year from the date of the release of these reasons.
The amended living on the avails provision takes effect 30 days from the
date of the release of these reasons.
The communicating provision remains in full force.
[9] One important point before we begin. 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. While we have concluded
that some aspects of the current legislative scheme governing prostitution are
unconstitutional, it remains open to Parliament to respond with new legislation
that complies with the requirements of the Charter.

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