Ontario court strikes down Canada's prostitution laws; Ottawa considers appeal
The Canadian Press
Published Tuesday, September 28, 2010 6:37PM EDT
TORONTO - A sex-trade worker who challenged Canada's prostitution laws hailed Tuesday as "emancipation day" after provisions that effectively criminalize prostitution were struck down as unconstitutional by an Ontario court.
Laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade "are not in accord with the principles of fundamental justice," the Ontario Superior Court ruled.
They put sex-trade workers in danger, the court said.
"You can't imagine how happy I am today because I've been abused by the justice system for a very, very, very long time," dominatrix Terri-Jean Bedford said at a news conference while clasping her leather riding crop.
"This is poetic justice."
Prostitution was not illegal in Canada, but the court struck down three provisions that criminalized most aspects of prostitution.
"These laws, individually and together, 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," Justice Susan Himel wrote her in decision.
Bedford was elated.
"It's like an emancipation day for sex-trade workers," she said.
The judgment is subject to a 30-day stay during which the law remains in place, and Bedford's lawyer said the federal government can seek an extension of that stay period.
The court's decision was a blow to the law-and-order Conservatives in Ottawa, who immediately signalled they are "seriously considering" an appeal.
"We will fight to ensure that the criminal law continues to address the significant harms that flow from prostitution to both communities and the prostitutes themselves, along with other vulnerable persons," Justice Minister Rob Nicholson said in a statement.
The government had argued that striking down the provisions without enacting something else in their place would "pose a danger to the public."
But Valerie Scott, 52, one of the women who launched the challenge along with Bedford, urged people not to believe any sky-is-falling, Armageddon scenarios.
"I would like to tell residents and business owners: don't be afraid," Scott said.
"Lightning bolts will not hit the sidewalk. There won't be frogs all over. It'll be all right."
Scott said the ruling will allow sex-trade workers to hire bodyguards and file income taxes.
"Sex workers can now pick up the phone and call the police and report a bad client," she said.
While the ruling strikes down those key Criminal Code offences -- which deal with adult prostitution -- it does not affect provisions dealing with people under 18.
Alan Young, the lawyer for those challenging the laws, said even they were surprised the decision was in their favour and he said it demonstrates the lasting power of the charter.
"Justice Himel today proved that 25 years after the enactment of the charter it has teeth," Young said at the news conference.
"It can bite and this is a big bite out of the Harper government."
Bedford -- who has been fighting the issue in the courts since her "Bondage Bungalow" north of Toronto was raided by police in 1994 -- argued the provisions forced sex-trade workers from the safety of their homes to face violence on the streets.
Himel also disagreed with the government's characterization that it would put the public in danger to strike the laws down without new ones in place. She said the danger to sex-trade workers outweighs any harm to the public.
It now falls to Parliament to "fashion corrective action," Himel said.
"It is my view that in the meantime these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the charter violations," Himel wrote.
"However, I also recognize that a consequence of this decision may be that unlicensed brothels may be operated, and in a way that may not be in the public interest."
While the decision strikes down the application of the law in Ontario, it remains to be seen if courts in other provinces will follow the Ontario decision. Young said he expects they will wait for the outcome of any appeals from Ottawa.
In the best-case scenario, Young said, these changes will actually come into effect in 2 1/2 years or so after the case finishes winding its way through the courts.
The federal government had argued that prostitution is inherently dangerous, no matter where it is practised.
The government also warned that Canada could become a sex tourism destination if prostitution-related activities are decriminalized.
The Christian Legal Fellowship, which was granted intervenor status, argued the provisions reflect society's views that prostitution "offends the conscience of ordinary Canadians."
Young said he knows some people will be "aghast" that prostitution has been deemed "even more legal than it was before."
"There are a lot of people who have moral objections to what we did, but let me just tell you that this case is all about protecting the security and safety of people who work in the sex trade, regardless of what you think of sex-trade workers," he said.