Ontario Superior Court Judge Susan Himel invalidated key provisions of Canada's anti-prostitution laws on the ground that they contribute to the danger faced by sex-trade workers and violate rights guaranteed under the Canadian Charter of Rights and Freedoms [the equivalent of a constitution].
At issue were prohibitions on keeping a common bawdy house, communicating for the purposes of prostitution, and living on the proceeds 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," Judge Himel said in the 131-page decision. "I find the danger faced by prostitutes greatly outweighs any harm that may be faced by the public."
The judge suspended the effect of the decision for 30 days to allow time for appeals and a legislative response, saying that "I 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…[It now falls to Parliament to] fashion corrective action."
The ruling does not affect provisions applicable to persons under 18.
Federal Justice Minister Rob Nicholson and Rona Ambrose, minister for the status of women, both said the government is concerned about the decision and "is seriously considering an appeal."
"It's like emancipation day for sex-trade workers," said plaintiff Terri-Jean Bedford. "The federal government must now take a stand and clarify what is legal and not legal between consenting adults in private."
"We don't have to worry about being raped and robbed and murdered," plaintiff Valerie Scott said. "This decision means that sex workers can now pick up the phone, and call the police and report a bad client. This means that we no longer have to be afraid, that we can work with the appropriate authorities." Scott envisions that sex workers will set up guilds and associations, health standards, workers' compensation programs, as well as pay income tax.
The plaintiffs were represented by Professor Alan Young of Osgoode Hall Law School, who handled the case pro bono with the help of 20 of his students. The case does not solve the problems related to prostitution, he said. "So what's happened is that there's still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That's not going to change," Young added.
"Here's what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law."
A spokesman for Ontario's attorney general said the office will be reviewing the decision carefully and will consult federal colleagues regarding a potential appeal.
"Ontario intervened and argued that the prostitution provisions of the Criminal Code are constitutional and valid and designed to prevent individuals, and particularly young people, from being drawn into prostitution, to protect our communities from the negative impacts of street prostitution and to ensure that those who control, coerce or abuse prostitutes are held accountable for their actions," said the statement from the Ontario attorney general's office.
The government had argued that striking down the provisions without enacting something else in their place would "pose a danger to the public."
While prostitution is technically legal in Canada, virtually every activity associated with it is not. The Criminal Code prohibits communication for the purpose of prostitution. It also prohibits keeping a common bawdy house for the purpose of prostitution.Those laws enacted in 1985 were an attempt to deal with the public nuisance created by streetwalkers. They failed to recognize the alternative — allowing women to work more safely indoors — was prohibited.
The ban on bawdy houses is an indictable offence that carries stiffer sanctions, including jail time and potential forfeiture of a woman's home, while the ban on communication for prostitution purposes is usually a summary offence that at most leads to fines. The provisions prevent sex-trade workers from properly screening clients, hiring security or working in the comfort and safety of their own homes or brothels, Young said.