Supreme Court of Canada rules that three prostitution laws are unconstitutional
The Supreme Court of Canada has struck down three of the country's prostitution laws, ruling that they are inconsistent with the Canadian Charter of Rights and Freedoms.
In a unanimous decision, the country's highest court ruled that laws prohibiting keeping a common bawdy house, living off the avails of prostitution, and communicating in public for the sale of sex violate sex workers' charter guarantee to security of the person under section 7.
Writing for the court, Chief Justice Beverly McLachlin concluded that it was not necessary to determine if the communicating in public law also violated sex workers' charter right to freedom of expression.
"The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity," McLachlin wrote. "They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks."
In 2010, Ontario Superior Court justice Susan Himel struck down all three laws in a case brought forward by three Ontario women: Terri Jean Bedford, Amy Lebovitch, and Valerie Scott.
In 2012, the Ontario Court of Appeal upheld Himel's ruling with regard to keeping a common bawdy house and living off the avails of prostitution.
But Ontario's highest court concluded in a 3-2 majority that the ban on communicating in public to sell sex did not violate the charter.
The Supreme Court of Canada has upheld Himel's ruling for all three laws, and has given Parliament a year to either draft new legislation or do nothing at all in response. McLachlin highlighted the "gross disproportionality" of the laws in her decision.
This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective). These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted.
Bedford had worked in the past as a prostitute, and during the 1990s she operated the Bondage Bungalow.
Bedford argued that she wanted to return to work "as a dominatrix in a secure, indoor location". McLachlin reported that she was concerned that this would expose her to criminal liability and she didn't want any of her assistants to be exposed to this either as a result of the "living off the avails" law.
Lebovitch is an indoor sex worker who claimed that she had been exposed to one serious violent incident. She didn't report it to the police because "out of fear of police scrutiny and the possibility of criminal charges".
"Ms. Lebovitch fears being charged and convicted under the bawdy-house provisions and the consequent possibility of forfeiture of her home," McLachlin stated in the decision. "She says that the fear of criminal charges has caused her to work on the street on occasion. She is also concerned that her partner will be charged with living on the avails of prostitution."
Scott, a former street prostitute and legalization activist, claimed that she had been "subjected to threats of violence, as well as verbal and physical abuse".
McLachlin's ruling highlighted how the ban on keeping a common bawdy house made it easier for notorious serial killer Robert Pickton to victimize women in Vancouver's Downtown Eastside.
Finally—a point developed in argument before us—the bawdy-house prohibition prevents resort to safe houses, to which prostitutes working on the street can take clients. In Vancouver, for example, “Grandma’s House” was established to support street workers in the Downtown Eastside, at about the same time as fears were growing that a serial killer was prowling the streets—fears which materialized in the notorious Robert Pickton. Street prostitutes—who the application judge found are largely the most vulnerable class of prostitutes, and who face an alarming amount of violence (para. 361)—were able to bring clients to Grandma’s House. However, charges were laid under s. 210, and although the charges were eventually stayed—four years after they were laid—Grandma’s House was shut down (supplementary affidavit of Dr. John Lowman, May 6, 2009, J.A.R., vol. 20, at p. 5744). For some prostitutes, particularly those who are destitute, safe houses such as Grandma’s House may be critical. For these people, the ability to work in brothels or hire security, even if those activities were lawful, may be illusory.
Vancouver's Jamie Lee Hamilton created Grandma's House and has been one of the city's most vocal proponents of striking down the prostitution laws.
McLachlin was once chief justice of the B.C. Supreme Court, and several B.C. lawyers presented arguments in the case.
Katrina Pacey, Joseph Arvay, Elin Sigurdson, Lisa Glowacki, and Kathleen Kinch acted for Pivot Legal Society, the Downtown Eastside Sex Workers Against Violence Society, and the PACE Society, which were all interveners opposing the laws. Arvay also acted for another intervener, the David Asper Centre for Constitutional Rights.
“I am overcome with emotion," Pacey, litigation director for Pivot Legal Society, said in a statment from Ottawa. "This a historic day for human rights in Canada and for the sex workers’ rights movement. The Supreme Court of Canada, in a unanimous decision, recognized the profound harm caused by Canada’s prostitution laws. This is a landmark decision which represents an enormous step forward for sex workers’ safety and human rights in this country.”
On the other side, Georgialee Lang represented the Evangelical Fellowship of Canada. Gwendoline Allison was retained by another intervener, the AWCEP Asian Women for Equality Society, which operates as the Asian Women Coalition Ending Prostitution.