Supreme Court of Canada rules that three prostitution laws are unconstitutional
The decision concerns keeping a common bawdy house, communicating in public, and living off the avails
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 Beverley 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.
Dec 20, 2013 at 1:58pm
What--no comments on this? Isn't prostitution a controversial topic? Come on folks, keep me entertained~
Dec 20, 2013 at 3:30pm
To paraphrase Sir Winston Churchill, the only thing for which a government need not ask permission is protection of its citizens. The persistent and clear decisions of multiple courts demonstrates that these laws obstruct citizens' protections, thus working against the most fundamental purpose of government.
This not about the morality of prostitution. The government may or may not choose to draft legislation that defends morality, but only insomuch as it makes citizens' protection its first priority. That will be difficult to do.
In fact, morality is not a static feature. Same-gender sex was once illegal because it was immoral, and so were lotteries. At one time the sale of alcohol was illegal for the same reason, and there is an increasing societal shift toward decriminalization of another mind-altering drug, (marijuana). Adultery is a mortal sin, according to many religions, but is not against the law in some societies.
We must be careful that morality and legality are not improperly conflated because, as we've seen in so many ways, they are clearly not the same things.
Dec 20, 2013 at 4:28pm
I think it's a bit unbalanced that everyone in favour of this ruling is stacked with Pivot, PACE, etc and the people against it are the evangelical women's networks. The Native Women's association of Canada also has a very compelling statement for opposing this decision, which they say also decriminalizes pimps and they advocate for the nordic model (interesting the photo with the "fuck the nordic model" sign)...it just paints this issue as religious women vs progressive women which is definitely not the case. Please read: http://www.nwac.ca/nwac-deeply-concerned-supreme-court-ruling-bedford-v-...
Dec 20, 2013 at 7:17pm
@ Jen Donovan - You are correct that there are many valid perspectives on this issue. Today's Supreme Court decision, agreeing with lower court decisions, is not the end of the discussion. Those multiple decisions merely confirm that existing laws fail to do what they were supposed to do, and have deleterious effects. This judgement offers an opportunity to our government to fix those faults. Many perspectives should be considered to improve our laws for the betterment of us all.
Dec 21, 2013 at 2:16am
@ Jen Donovan
When they argue that this decision "decriminalizes pimps", that is both true and untrue. There are so-called "pimps" out there that are nothing more than booking agencies, who handle the phones for the girls, give them a safe place to work and health supplies, and then take a cut for their services. These agencies see the escorts on their roster as their "clients" who are paying them for those administration and safety services.
That doesn't mean that pimps who force women into the sex trade, take all their earnings, and abuse them aren't still illegal. Human trafficking and forced prostitution ARE still against the law and they can still be punished under the laws against those crimes.
What this means is that those agencies who are considerate of their girls and who are being willingly paid by the girls should not be punished for offering these women a service that not only is in demand, but that is far safer than the alternatives!
Dec 21, 2013 at 10:24am
I'm on my knees thanking god AKA universe, and all thinking persons for this much deserved allowance of a person to SAFELY conduct work they choose, and freedom over their own body.
Dec 21, 2013 at 1:05pm
Before cheering this ruling from Canada's unelected, robed oligarchy, we should take a hard look at the results of legalized prostitution in other jurisdictions:
This is not an issue like marijuana laws, where a libertarian approach really is the best option. Laws against trafficking in human beings for sexual services exist for concrete and valid reasons. And the overwhelming majority of Canadians, while endorsing marijuana legalization, do NOT want to see liberalized sex-trade laws. The current government needs to ignore this stupid ruling, invoke the Notwithstanding Clause if necessary, and make prostitution completely illegal. And that also goes for the escort agencies and run & tugs--all run by organized crime--that civic governments shamefully license and civic politicians accept donations from.
Dec 21, 2013 at 2:51pm
As long as men or women can be bought and sold we do not have freedom for all and we do not have democracy. As long as men are allowed to purchase women and girls the freedom and equality women thirst for will be denied. Those of you here who support any form of prostitution are supporting men's dominance over women and you cannot deny this as who is creating the demand for bought sex? MEN!!!!!!!!!!!! The sex trade like the slave trade must be abolished and the girls of today must know that they can always be free from having to sell their bodies to men for cash. We are not just talking about today we must work in all things we do for future generations and I for one do not want future female generations to accept that selling themselves is an option for survival or as a career. The Supreme Court in its ruling has set back the rights and freedoms and equality of women many years. For our surpreme body to do anything but to banish prostitution/ slavery is an historical tragedy that we as a country will never get over. Abolishing prostitution is a civil rights cause for woman and the struggle to do so must go on.
Dec 21, 2013 at 11:25pm
What absolutely boggles my mind is the attempt to muddy the water and lump trafficking in with prostitution. The fact that a women would chose to engage in this activity means that she is not capable of deciding what to do with her own body, and society has to step in and stop her. Is her body not HER body? Exchanging money for sex is legal. Trafficking is not. Do not confuse the two. Show some proof, any proof, that organized crime controls every rub and tug before smearing them all with the same brush.
This case concerns the basic values against arbitrariness, ...overbreadth, ...and gross disproportionality...
In other words,these laws are social engineering at its worst. Either prostitution is legal, and the activitities around keeping it safe are supported by lawmakers. Or, make it illegal. The bawdy house provisions just made criminals out of prostitutes' support staff, made their lives much more difficult than they needed to be.
My eyes are hurting
Dec 22, 2013 at 7:32am
What next? Are proponents of child porn and "pedophile" rights advocates going to be "overcome" with emotion when their "human" rights are validated by some kangaroo court?
Society is not very social or safe anymore if I have to have sex workers "communicate" with me. Stop.