Supreme Court gives government a year to reform prostitution laws

Unanimous ruling strikes down three provisions

by John Geddes

Terri-Jean Bedford. (Adrian Wyld/CP)

The Supreme Court of Canada has struck down the main laws that limit the ways prostitutes work in Canada, but given the federal government a full year to pass new legislation to regulate the sex trade.

In a unanimous decision, written by Chief Justice Beverley McLachlin, the court found that the three key provisions in the laws around prostitution, which is not itself illegal in Canada, expose prostitutes to unnecessary dangers to such a degree that the provisions violate the Charter of Rights and Freedoms.

But McLachlin was careful not to throw the door open to unrestricted prostitution. “I have concluded that each of the challenged provisions, considered independently, violate the Charter,” she wrote in a key passage, but went on: “That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.”

McLachlin said the three main aspects of the law that the court was considering—prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication about prostitution—have to be considered as an “intertwined” set. “They impact on each other,” she wrote. “Greater latitude in one measure—for example, permitting prostitutes to obtain the assistance of security personnel—might impact on the constitutionality of another measure—for example, forbidding the nuisances associated with keeping a bawdy-house.”

Recognizing that reforming the law will be a complex matter, her judgement gave the federal government a year to draft and pass new laws, in effect suspending the affect of today’s ruling. Given that the basis for the decision was the court’s finding that the laws as they stand force prostitutes to work in dangerous ways, that delay is a serious matter.

McLachlin admitted that “leaving the prohibitions against bawdy-houses, living on the avails of prostitution and public communication for purposes of prostitution in place in their present form leaves prostitutes at increased risk for the time of the suspension—risks which violate their constitutional right to security of the person.”

The appeals case started when three Ontario prostitutes, Terry-Jean Bedford, Amy Lebovitch and Valerie Scott, challenged anti-prostitution laws in 2009, arguing the rules stop them from taking steps to protect themselves. (Their lawyer is slated to hold a news conference on Parliament Hill later this morning, and Maclean’s will cover that reaction. The news conference was cancelled)

The prostitution decision carries echoes of previous key rulings from McLachlin’s court. Back in the fall of 2011, the court ruled against a bid by the federal government to shut down a pioneering supervised injection clinic in Vancouver, called Insite, for drug addicts.

That ruling also took into account the practical harm that might be done marginalized individuals—heroin addicts, in the case of the Insite decision—if the facility was closed. “The potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises,” said the 2011 Insite ruling.

Today’s ruling on prostitution comes to a similar conclusion: “The harms to prostitutes… 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.”

The first reaction from the government to a Supreme Court decision is usually very cautiously worded. But in this case the tone of stern disapproval from Justice Minister Peter MacKay, who expressed “concern” over the ruling, was unmistakable. “We are reviewing the decision and 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,” MacKay said in a written statement.

He went on to suggest that while the court focused on the safety of prostitutes, the government is more broadly worried about otheres in the neighbourhoods where the sex trade is conducted: “We are committed to the safety of all Canadians and the well-being of our communities.” And MacKay alluded, without being specific, to ways the law already seeks to protects prostitutes. “A number of other Criminal Code provisions remain in place to protect those engaged in prostitution and other vulnerable persons, and to address the negative effects prostitution has on communities,” he said.

A sharper rebuke of the court came from Michelle Rempel, the minister of state for western economic diversification. “Can’t help but feel our judiciary struck a blow to women’s safety and equality this morning. We aren’t a commodity to be bought or sold,” the the Conservative MP for Calgary Centre-North said on Twitter.




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Supreme Court gives government a year to reform prostitution laws

  1. a year ?? .. what if it has to get in line behind environmental
    regulations ?? It’s not easy making priorities.

  2. Did the case discuss whether prostitution itself could be made illegal? I don’t see this government taking the pragrmatic approach and saying “what is important is that women engaged in this dangerous activity have more safety and that illegal trafficking be curtailed.” If they do anything at all it would probably be re-criminalizing the act itself.

    • Funnily enough, prostituion has never been illegal in Canada.

      • I can’t immediately speak to our entire history from 1867, but it certainly is not now. But the question is could it?

        • There’s a wiki on Canadian prostitution laws – even prior to 1867 it was legal.

          The buying and seling of sex is illegal in most US states, so I suppose there’s no reason why it couldn’t be made so here.

          They could call it the “Enough to Eat at Home Act”.

          • Boooooo LOL

          • @GFMD @stoktunes:disqus According to CBC, the Conservatives passed a ‘motion’ (I assume that means a resolution) at their convention calling for ‘assymetrical criminalization’ of prostitution. I believe this means make it illegal to purchase sex, and make it illegal to sell sex in certain cases/situations. http://www.cbc.ca/news/world/supreme-court-prostitution-decision-5-questions-1.2471934?cmp=rss

            So, you’d think that’s what they’d do. You know, if they gave the slightest rat’s a$$ about what their base thinks. I suspect, at this time, they will.

          • Their math has always been the same: do what gains/maintains base votes if the fallout is minimal otherwise. Otherwise. complain bitterly to the base that dysfunctional parliament, biased media, and judicial activism have conspired against them, which I expect plays even better with a base that approaches the world from a standpoint of paranoia and imagined victimhood.

          • Yes, but right now I suspect they can’t afford to lose any more of them. Particularly those who shell out for Convention fees and are committed enough to vote for resolutions!

          • Yep, you know at least privately they support prostitution, see “Found in Jack” for why I say this.

      • But making the arrangement is. Dumb law too as I could argue a marriage is a form of prostitution. So is a lawyer.

    • Long-term, the real question would be, it seems to me, would the SCOC eventually decide that criminalizing prostitution is constitutional?

      • Indeed.

      • My take is no. Governemtn has no business in the bedroom of concenting adults where no hard is done.

        Just a bunch of control freaks looking to control women as like abortion, they think religion and government own women.

        Cops like busting hookers as it is easy entertaining work fro generating PR. Making prostitution legal, including making the deal, would force cops to go after the real criminals like the drug pushing pimps.

        • Yeah, sure. the cops would go after other criminals, leaving vulnerable women who are not prostitutes having to deal with horny men who think they might be.

          sorry for almost duplicate. moderation cut in so i reworded it.

    • Making it a crime to exchange money for sex is problematic, since there is a broad spectrum of such behaviour, ranging from back-alley encounters to sugar-daddy relationships and even, in some cases, marriages. And let’s face it, the exchange will continue as long as we live in a society where “men want it, and women are sitting on it.”

      • All true, but we shouldn’t assume that such a law could not be adequately drafted, or that the CPC would even care, esp. if they can start running ads that begin “We know Justin Trudeau supports drug use and prostitution…”

        • You can’t make laws that will counteract the general idea behind this proposal, and that is, that prostitution is okay in Canada. Welcome, girls from anywhere, to our rich country of Canada. If you can’t get healthcare any other way, you can always become a prostitute.

      • It’s not called the world’s oldest profession for nothing. BTW, aren’t we all whores?

    • If they struck down this law, they would certainly strike down a law outlawing prostitution. Non-starter.

      • Interesting. Where do they say this?

  3. A good ruling. Buying/selling sex will never go away. And no matter how many social programs we have, there will be women with little/no self esteem needing to make money to survive. Better to make their work safer than current laws that endanger them.

    • There are many things that will never go away. If we make them all legal purely on that basis, then everything should be legal, so your “will never go away” argument does not hold water.

      As for “women needing to make money to survive” argument, let me remind you that we are in Canada, not some war-torn African country. We have SO many ways to earn money by honest work, or even to get by without working, that “money to survive” sounds utterly ridiculous.

      • If there were ever enough jobs to go around, for women, then men would have to find another way (besides paying so much) to coerce women into becoming prostitutes. Make them spend what they have in order to survive, by forcing them to pay for healthcare and other living expenses, and then, when they have nothing, offer them your prick.

        It’s fine for girls who don’t mind, or even enjoy it, but why is it assumed all women, willy-nilly, would even be able to go through with servicing a man, when it is assumed that many women don’t want to cut lawns for a living, or be engineers, or be artists? Why are women coerced into doing this.

        And why are women in good positions financially, like Christie Blatchford and some academic feminists, standing up for the prostitutes. I don’t care if they had to have unwanted sex in order to get to be a professor, or had to marry someone they didn’t even like much. That was their choice. Don’t impose your choices on the rest of society. If you think men should be services in the community, then go do it. Just don’t expect all of us to do it just because we don’t have money to get us through this f –ng life.

    • Why do so many assume that selling sex is indicative of low self esteem? For some who choose to make money thusly, it might simply be an economic or -horrors – preferred choice. I’m sure at least some of the waitresses at Hooters (or almost any bar these days – cleavage and short skirts seems rampant) have perfectly adequate self esteem, but simply need a job to pay the rent and don’t find it too objectionable.

  4. If backbench MPs can sell their integrity and get gold plated pensions, why can’t prostitutes ply their wares without arrest?

  5. Can’t really make prostitution illegal.

    Yep. Marriage could be said to be prostitution where one spouse supports the other with money and gets sex in return.

    Prostitution
    is the oldest profession of them all. Hey big man, you have fresh deer
    meat and I can sooth your wounds, make you feel good and give you kids
    if you can feed me.

    That is how marriage got started many 1000s of years ago. And no money was involved, as payment could be an apartment, food, free rent, car, coat, ring, stock tips, paid vacations….

    • It’s always been for sex that women are valued. This can only make it worse for young women and potential immigrants willing to do ‘anything’ to get into Canada.

  6. This country is becoming radically right wing. Cheaper legal whores and government discussing decriminalizing marijuana, and not even delivering mail to ANYBODIES door anymore. These right-wing loons really have to stop this once great nation into a hedonistic jungle wasteland. This government has even insisted on Senator’s paying back illegitimate expense claims! WTF!?

  7. Such a hilarious statement by the judiciary: “one year to reform…” If this is reform, then what is downright corruption and dissing of human dignity

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