On March 26, the Ontario Court of Appeal ruled that some of Canada’s prostitution laws are unconstitutional.
Prostitution is legal in Canada – the appeals court noted that there is “no law that prohibits a person from selling sex, and no law that prohibits another from buying it.” However, The Criminal Code of Canada prohibits some activities around prostitution. In 2010 Ontario Superior Court Judge Susan G. Himel ruled that three provisions of the Criminal Code were unconstitutional as currently written:
1. Section 210, which prohibits the operation of common bawdy-houses. (This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, massage parlours or their own homes.)
2. Section 212(1)(j), which prohibits living on the avails of prostitution. (This prevents anyone, including pimps, from profiting from another’s prostitution.)
3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. (This prevents prostitutes from offering their services in public, particularly on the streets.)
The Government of Ontario appealed that ruling (Bedford v. Canada), and the Court of Appeals has now upheld the first two parts of Himel’s ruling, but not the third.
However, the court said the ruling on bawdy-houses would not take effect for 12 months, giving the Canadian Parliament time to rewrite that section of the law so that it would be constitutional.
The court also said that the “living off the avails of prostitution” ruling would not take effect for 30 days and that “living off the avails of prostitution” remains illegal “in circumstances of exploitation.”
The lawyer for the three sex trade workers who brought the original case – Terri-Jean Bedford, 52, Valerie Scott, 53, and Amy Lebovitch, 33 – argued that working indoors and hiring bodyguards would keep prostitutes safer from serial killers such as Robert (Willy) Pickton.
Both Canadian Justice Minister Rob Nicholson and Ontario Attorney General John Gerretsen have said that they will review the decision before deciding how to proceed. Possible actions include appealing the decision to the Supreme Court of Canada and amending the Criminal Code.
The decision was welcomed by advocates such as Nikki Thomas, executive director of Sex Professionals of Canada. However, it has been criticized by others, ranging from feminist activists to conservative religious groups. Several former prostitutes told reporters that the ruling will prevent social workers and police from intervening to rescue underage prostitutes and sends the wrong message to children that prostitution is an acceptable career.
National Post commentator Jonathan Kay suggested that the decision was balanced and that indoor, legal brothels will be safer. However, he also stated that it will be “almost impossible” to get “credible testimony” form prostitutes saying that they are being exploited by their pimps.
Father Raymond J. de Souza, a Roman Catholic priest and newspaper columnist, wrote that the ruling will only increase the number of women trapped in prostitution, adding, “The naïveté of the Court of Appeal is … astonishing. The learned justices have a vision of professionally accomplished, commercially savvy young women, contemplating careers either as hookers or graphic designers, and concerned about the enforceability of contracts and provision of benefits. A few high-end prostitutes would benefit from no longer having to disguise their ‘escort’ services, but prostitution in Canada is not a high-end occupation. It preys upon the desperately poor, the drug addicted, the homeless, the mentally ill and other vulnerable women in the dark corners of society.”
De Souza went on to say, “The Court knows that most prostitutes are being exploited by their pimps — that’s how they get into the sordid business in the first place … Did it occur to the Court in this latest adventure in policy-making that perhaps women who are brutalized and degraded may also be forced into telling the police that everything is just peachy-keen with their non-exploitative pimps?”
The court ruling also flies in the face of efforts by Christians and other groups to bring an end to human trafficking, such as last year’s Ignite the Road to Justice tour by former prostitute Tania Fiolleau and Trinity Western University graduate and former Miss Canada Tara Teng.
“Canada needs new laws rather than simply trying to amend existing laws,” said Don Hutchinson, vice-president and general legal counsel with The Evangelical Fellowship of Canada (EFC) in a news release.
In the same news release, EFC policy analyst Julia Beazley said, “Surveys of women in prostitution here in Canada and in other nations have consistently found that upwards of 90% of prostituted women would get out if they could. There would be no justice in normalizing and legitimizing abuse and exploitation. And there is little sense in trying to stop human trafficking – with its attendant immigration and organized crime issues – if we’re not going to address the end point of most trafficking, which is prostitution … Prostitution is not safe, and must not be legitimated as a form of work. It must not be accepted as a solution to female poverty … We must be unambiguous in defining prostitution as a form of violence, abuse and control of vulnerable women, children and men.”
Similarly, in its news release, the Institute of Marriage and Family Canada (IMFC) encouraged the governments involved to appeal the ruling to the Supreme Court of Canada, stating, “Prostitution is inherently dangerous and the legal changes that are currently being made in Ontario will not change that.”
Both the EFC and IMFC are advocating that the Canadian government enact legislation that would punish johns (those who purchase sex) rather than prostitutes (those who sell sex), on the understanding that prostitution is essentially a sex crime against the prostitute. They note that this approach, called “the Swedish model” has been highly effective in Scandinavia.
The IMFC news release explains: “Sweden criminalizes the buyer, understanding that an abuse of power is at play when largely male clients are able to buy their largely female human ‘merchandise.’ Sweden has seen a reduction in the number of prostitutes as well as the accompanying social ills, like human trafficking, drug use and organized crime. On the other hand, when the Netherlands legalized prostitution, new criminal activity arose. Amsterdam’s former mayor Job Cohen reported: ‘We’ve realized that this is no longer about small scale entrepreneurs, but that big crime organizations are involved here in trafficking women, drugs, killings and other criminal activities.’”