Court strikes down prostitution laws - Macleans.ca
 

Court strikes down prostitution laws

Ban on sex trade puts prostitutes in danger, says Ontario court


 

A ruling by Ontario’s Superior Court of Justice has effectively struck down Canada’s ban on prostitution. “These laws, individually and together,” wrote Justice Susan Himel in the landmark decision, “force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.” The ruling, which had been on reserve for nearly a year, was prompted by a case in which three sex trade workers argued the laws forbidding prostitution force sex workers onto the street and expose them to violence.

Toronto Star


 
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Court strikes down prostitution laws

  1. Wow, this is huge (isn't it??).

    If I'm right, that's Terri Bedford in the photo, the darker woman, and she's the S&M person who argued against her charges a few years ago on the basis that she actually doesn't have sex with her clients, just panders to their violent fantasies.

    I quite admire Terri Bedford. This is interesting.

  2. Struck down Canada's ''ban'' on prostitution…Does that mean it is now legal ? Can anyone clarify ?

    • Prostitution has never been illegal.

      • Ottawa_Centrist…. So paying for her services is the illegal part then ? Yes ?

        • i believe its solicitation that was illegal, and so was running a bawdy house.

          • The same way doing drugs isn't illegal
            but being in possession of them is.
            That's just the way British law works.

          • Thankyou people for the education……

    • It's actually "Communication for the purpose of prostitution" and "keeping a bawdy house" that shows up most in court, particularly the former. Police officers posing as hookers need only get a john to ask for sex at a nominal amount in order to charge someone, and officers as johns need only have a hooker accept a price to charge her. If these laws are struck down, which I'm curious about, prositution as an offence would become obselete under the Criminal Code.

  3. About bloody time.

    While I really do appreciate the moral perspective some attempt to embody in their stance against the very idea of prostitution, good public policy must be measured by its effectiveness and ability to actually achieve the worthwhile goals it is designed to respond to.

    The prohibition on prostitution has been an unmitigated failure in this regard, leaving women at the mercy of organized crime, unable to organize or protect themselves.

    Ideally we should strive to create a society in which we can all make our own choices without forcing others to live with the consequences. I can't imagine what other ideal we would go by.

    Instead many still seem to embrace the notion that what we merely don't like in others is justification to ostracize them from society.

    The result is a blackmarket controlled by criminal elements at war with the socially sanctioned elements, with many unfortunate victums caught in the middle.

    Let's hope this leads to a more compassionate and sensible ongoing solution.

    • Well said. Now if we can just end this silly drug prohibition, organized crime will be in deep trouble.

      • It would certainly bite into their profits big time. It boggles the mind really how we let this continue.

        Of course organized crime makes money by participating in virtually any activity that is illegal, so it's much like taking one head off a hydra, but still, if we were to regulate and tax pot and prostitution alone, we'd probably wipe out half their income.

        • Pretty much. I suspect that pot is their cash cow, and they would have a hard time putting together a network for selling stuff like cocaine and heroine if that cash cow was dead. In any event, any weakening of organized crime would be a welcome development. Right now we're essentially subsidizing them by giving them one of Canada's biggest markets (i.e., marijuana).

          • Oh how Canada (and in particular, Ontario) does love to hand a giant monopoly to a special interest. I'm looking at you, Brewers Retail.

          • Ive gone further then that even, and think we have to look at cocaine and heroin decriminalization/legalization also.

            Too many bad guys profit from these being illegal; and it is more of a health issue then a criminal one, on the users end.

        • True enough. I personally favour legalizing all drugs, and dealing with them (and taxing them) in the same way the government deals with alcohol. However, I do not delude myself into thinking that the various crime figures will simply give up the life and go to med school. Some might well join the legitimate economy, but many others will just apply their "enterprising nature" to other illicit acts. I think legalizing drugs is a valid option simply for the economic justifications alone. A) The money saved on enforcement, and B) the potential billions in tax revenue. In extreme cases, such as the wave of violence that is currently ripping Mexico apart at the seams, ending prohibition most definitely will cut down on crime, But I'm not that optimistic to think that developed countries like Canada & the US would see a large drop in crime rates. We'd see some, but not as much as we might like to think. The case for legalization of both drugs and prostitution needs to be made from an economic standpoint, and from the standpoint that we have failed miserably to curb these behaviours. Reducing crime and improving safety – while laudable – are well down the list. Not because I want them down the list, but because I don't think human nature will change all that much.

      • Could you tell that to our current government, and opposition leader?

    • Here, Here!! – It's about time!!!

  4. Excellent decision, with the absolute right justification.

    You go girls. Don't take being second class, and forced to the shadows anymore.

    How many mass graves filled with prostitutes do we need to find, before the rest of the country gets it?

    • I'm in favour of legalization, but this will do nothing to make the practice any safer for the most vulnerable prostitutes. See my comment below.

      • Maybe we can use the extra police man hours to track down some of these killers then.

        At the very least prohibition of any vice exacerbates the social harms. Some would argue that it is worse overall, then the harms themselves.

        The economic argument you are making would not have stood up in court, and I'll take this victory any way I can. I also believe that this decision will at least move some of these women off the margins, and improve their lives.

        Why such a pesimist? Did you see studies to the contrary? I always like a good study.

        The ball is now in PM Harpers court. Does he move forward with necessary reforms? (not likely), or take it to the SCC? Fun stuff ahead!

        • I can tell you right now they'll challenge the ruling all the way, as that is pretty much standard procedure. The government generally does defend the law of the land against charter challenges, and will certainly do so in this instance. The law should be removed by the elected legislature as as an act of good public policy, not because some judge found a charter violation.

        • I'm a pessimist because of my (albiet incomplete) understanding of human nature. Our worst attributes nearly always find a way to manifest themselves in the worst possible fashion. I base my assertions on comments I've heard from people who work to help prostitutes. They come right out and say the most marginal and vulnerable of women will not be helped by legalization. It's true the economic argument would not have held up in court, which is why I'd much prefer the legislatures to be dealing with these things, since they are matters of public policy.

          • I was really hoping for a study. Anecdotal evidence just doesn't satisfy my sceptical nature. I know they've had some troubles with human trafficing in Holland, but Canada is a much different situation. I also think any bad effects from this could be mitigated, with smart policy (if only).

            I'd also much prefer some sane law and order legislation coming out of our parliament, but have you seen that happening? Take the libertarian victory and run.

            If nothing else, debate in Canada just got more interesting.

          • While indeed Canada just got more interesting, the "Harper disliking side of me" wonders if this will turn into a baseline cash cow for the conservative party war chest.

          • Is there a "Harper liking" side to you, or are you yanking my chain? If so I find that suprising, and interesting. Please elaborate.

            I'll set your mind at ease about fundraising somewhat with two questions.

            How much more milk can be squeezed from the "liberal activist judges" cow?

            Will the CPC have a full war chest for elections in the foreseeable future, regardless of this?

          • No, at this point I have no Harper liking side. I tend to lean left, but I seek good, honest government above all else. Filling their own pockets or dumbing down debate, both stink in my books.
            While I have absolutely no issue with striking down the prostitution laws, I just hate the idea that it might result in more TV ads attacking – well, insert target here.
            The CPC will doubtlessly have a full war chest come election time, and at the rate it is continually filling up I can't help but wonder where all the rich elitist donors are coming from – after all, shouldn't they be Liberals?

          • "at this point"? who are you kidding??

            as for the war chest i dont think its from rich elitist donors but from middle class people who see the need to donate. or poor people like me who are willing to give up a rare restaurant meal to donate.

          • As an added bonus, I'll give you some insight that may set your (Orange?) heart fluttering. I don't claim to be a great bastion of conservative thought, but just look at the argeement between the Great Ape, and I, that this is a good thing overall.

            Although CPC MPs will line up against this, it is a rather toxic issue among Canadian social libertarian conservatives, and social Conservatives. Aside from abortion, vice prohibition may be one of the most devisive issues for us. PM Harper and Iggy tend to ignore, and underestimate this strong social libertarian nature in the Canadian character.

            Think of it like the LGR wedge that just split the Dippers. I did not see one conservative pundit in the country line up to argue to save it. Now look at the National Post article from today:
            http://fullcomment.nationalpost.com/2010/09/29/na

            Drug prohibition is much the same story. If the Liberals weren't so weak-sauce on this, and ditched ideas like National Child Care, they could make some great hay come election day.

  5. Macleans is crap journalism.

    • And your comment has ''what'' to do with the current topic?

    • Heh. So because they posted a link to a "just the facts" Star report from a trial, they're crap. I'd hate to see what you'd say about Her Majesty's Court Reporters.

  6. How about the male prostitutes? It is so unfair only hearing about women fighting for their rights, where are the men?

    • Paying the women for sex, that's where. Men overwhelmingly tend to be on the buying end of these transactions. Human nature.

      • Yeah but men can be buying from men. It's about the sex workers, not their genders. At least, I see nothing in the report about gender. But the cons wouldn't send out the justice minister to comment today, only the minister for women.

        I remember the Terri Bedford case now: she was arrested in her own home for providing a man with an "infantalism" experience, I think — and told the court she was not selling sex; he was paying her to dress him in a diaper, burp him, change him…fascinating really — what does the law deem to be sex? And what are we allowed to do in our own homes? Why does payment make an act — that does not involve "sex" — illegal?

      • No wonder, many of us women are so grumpy. It is just not so fair!

        • Don't worry, this applies to men as well as women.

          You should just try hitting the bar thou.

          • That seems to be a lot of work.

  7. I think it is rather ridiculous to outlaw sex simply because someone benefits financially from the transaction, so in that sense this ruling is long overdue. However, making it legal will not help those women who are most vulnerable. The so-called "low track" prostitutes, who are afflicted with various diseases and addictions, would never get a licence to practice anyway. People who work with prostitutes and try to help them get off the street and deal with their addictions will be the first ones to tell you that. Many of them scoff at legalization as a means of improving safety, because they know that the most desperate down-and-outers will still be on the streets plying their trade illegally. While I applaud this ruling from a strictly economic perspective (forcing prostitution underground is a huge net loss to government revenues), we'd best not delude ourselves into thinking this is some great victory for women. The most vulnerable ones will remain completely unaffected – and unaided – by legalization.

    • You're making an assumption that the remedy sought by the federal government to correct the law will be licensing, or that the licensing would actually catch diseases and addictions, or be as prohibitive to the vulnerable as you think.

      I would like you to walk up to any of our recent arrivals from other countries who have been lured here on the promise of good jobs, only to have their passports taken away and forced to be prostitutes, and tell them that legalization won't help them. Ditto for young women lured in at a young The primary reason that the most exploited of this industry DON'T go to the police is fear of prosecution. We can split hairs over the perils of setting up a licensing system, but you can't honestly believe that legalizing this sector of the economy wont' offer any protection to the vulnerable.

      • The factors that drive them onto the streets and make them vulnerable won't be ameliorated by legalization, licencing or not.

        • Oh, goodness, how right you are, but that is an entirely separate matter, isn't it? Keeping it illegal merely compounds the problems posed by those factors to which you refer. The evolution of the exploitive "pimp" was greatly advanced by the attempts of society to further render prostitution illegal. Since the bulk of prostitution is illegal, a prostitute who wishes to work in the business has no real legal recourse if she is assaulted or not paid while on the job – so in many cases she will turn to a pimp to enforce, market, protect, and collect. Also, many prostitutes are either lured in by pimps using drugs, money, clothes, abuse, etc., and then find that they cannot escape the profession through the use of police because they themselves were involved in illegal activities. If a sex trade worker is no longer treated like a criminal, they can be their own business manager, and advertise/screen for clients on their own, as well as seek legal remediation when such instances require.

  8. This is a constitutional right to a pimp. And a constitutional right to a brothel. I see both sides of the debate concerning whether or not Parliament ought to make laws making prostitution more or less accessible, and might concede that the current laws *should* change. But I fail to see how pimps and brothels are constitutionally protected such that current laws *must* change.

    • The ruling had more to do with the laws in question doing more harm than good, rather than what is guaranteed by the charter.

      • While admittedly I've only read media coverage of the ruling, did it not strike down sections of the Criminal Code because they violated section 7 of the Charter and, based on the harm/good analysis you refer not, could not be saved under the section 1 Oakes test?

    • There was no mention of striking down the "procuring" law which describes pimping, so I don't think you're right on that count. It shouldn't be repealed, anyway, as pimping forms part of the organized crime gamut we should be trying to avoid.

  9. why do we even bother having elections anymore? Just let these Equity Zombie Courts decide every issue for us and Screw Democracy.

    • Courts don't make laws, they strike them down. Parliament makes laws and decides the details. Big difference.

    • Perhaps you didn't notice that the Charter of Rights and Freedoms was enacted by the governments of Canada and the Provinces all of which were formed as the result of DEMOCRATIC ELECTIONS. The Charter REQUIRES the Supreme Court to ensure that legislation eneacted by governments is in keeping with the Charter that the governments themselves established. Any government that doesn't like the court ruling has the choice to either use the not-withstanding provision of the Charter to overrule the court ruling or garner sufficient support to change the Charter using the democratic process to do this. The Charter certianly doesn't "screw democracy" but it does make it inconvenient for governments who simply want to ignore the Charter and impose the wishes of the minority on the whole country, which the current Harper conservatives are want to do.

  10. If prostitutes' Charter Rights are violated by the ban on prostitution because the ban exposes them to danger

    does the same not go for the street drug dealer? that's a dangerous business too, right?

    • Except there is no legal way to be a drug dealer in the first place. Prostitution is, therefore, different.

      • I don't understand your response – was not prostitution illegalas well?

        • No, prostitution was legal. Everything else involved in the trade was criminalized though.

  11. The law is struck down because the law forces prostitutes who choose to obey the law fully into a more dangerous position? Hoo boy, there had better be more reasoning behind this judgment than that. It is illegal for me to drive my car on the sidewalk. That forces me to drive on the road, where other vehicles are moving around and more likely to crash into me. Justice Himel, what can you do to shield my right to security of the person?

    I am no fan of current prostitution law nonsense. But if the people really wanted legislation changed, we have a mechanism in place to amend it.

    • I'm of the same mind. The law should be changed because it would be good public policy to change it. Instead, it is being changed on an ad hoc basis because some judge interprets the Charter differently than all his/her predecessors. Makes you wonder why we bother electing governments. Theoretically every law creates inequities – between those who break the law and those who do not. Which could be why the bar for Charter challenges seems to be drifting lower and lower.

      • I hope you are not going to have a stroke after hearing a human right tribunal in Ontario has the power to appoint and remove deans in universities.

        • If I was going to have a stroke, I'd have had one by now.

  12. Interesting development and good to know what is happening in Canada regarding this issue.

  13. Watch for the Con scare tactics…..I urge everyone to do their own research and not fall for the propoganda!
    Rub and Tugs are everywhere, and get licenses…everyone knows what goes on in 99.9% of those places….
    I think the judge put it correctly nothing more than a 'social nuisance' ..you'll never get rid of it, so make it as safe as you can possibly can for everyone involved and all you shocked and appalled folks? I suggest you handle it the same way you should gay marriage – if you don't like it? Dont go there or get one. Easy peasy

  14. I see a debate arising for the next campaign… copy the gay-marriage as a template.

    – the conservative will say… "We, Parliamentarians, true people's voice, are those who casting laws not the judges…."

    – the libs will say… "In Charter we trust"

    – the dippers will say… "Stephen Harper bla bla … George Bush bla bla "

    – and the Bloc, …. well I guess they have nothing to say as long as anybody has something to say about Bonhomme.

  15. Re The Image of Two Women with this Report

    Those are Canadian hookers?

    Immigration may be the answer.

  16. Don't run to the massage parlours yet. Convinced the Government will use it for political posturing and overturned a long overdue decision. Ask the families of women missing in Vancouver's east side whether their constitutional laws were upheld.
    Too bad as it's only the criminals who want it to stay illegal. Imagine trying to collect HST on those services?

  17. I have tried all day to imagine the same case being brought to the Ontario Supreme Court by a man, and not a showy woman like Terri Bedford. I just can't see it. Even though, without doing any research I would guess that the vast majority of bawdy houses are owned by men, not women. Men, who are just loving every last bit of this ruling, because they will now be able to exploit women with the full support of the law. Terri Bedford is like a caricature – and she does not represent the average situation of sex trade workers. What percentage of prostitutes do you suppose chose their profession?

    • "What percentage of prostitutes do you suppose chose their profession?"

      100% unless they are truly slaves at the point of a gun.

      • "100% unless they are truly slaves at the point of a gun."

        Since I find it hard to believe that anyone could truly be that naive, I'm assuming your nom de plume is sarcastic…