In December 2013, the Supreme Court of Canada struck down the Criminal Code provision against keeping a common bawdy-house.
That's because Canada's highest court found that it violated section 7 of the Canadian Charter of Rights and Freedoms guaranteeing the right to life, liberty, and security of the person.
Despite this, Abbotsford police issued a news release today declaring that they're "recommending charges of 'Keeping a Common Bawdy House' against a 54-year-old woman from Vancouver".
It came after police received tips of a potential "bawdy house" in the 2800 block of Townline Road.
Abbotsford police noted that the location isn't far from an elementary school and a high school.
"It was also important to determine if there was evidence of Human Trafficking or the involvement of youth at the residence," the news release stated.
Last December's Supreme Court of Canada ruling striking down the bawdy-house prohibition won't take effect for a year.
This gives the federal government time to bring in new laws that don't violate sex workers' charter rights.
Bill C-36 has been introduced in Parliament in response to the court ruling, but the legislation has not yet been scrutinized by the Commons justice committee. It's still a long way from receiving royal assent.
Meanwhile, there are provisions on the books for addressing the issues of concern to Abbotsford police. The Department of Justice website notes that section 279 of the Criminal Code offers a comprehensive response to human trafficking, with penalties ranging up to 14 years in prison.
In addition, section 212.4 of the Criminal Code makes it illegal to communicate with anyone under the age of 18 for the purpose of prostitution. This carries a maximum sentence of five years.
So the question remains: why would Abbotsford police recommend a charge of keeping a common-bawdy house when it could recommend these other charges? Is it for a lack of evidence?
Keep in mind that the Supreme Court of Canada's landmark decision came after a 2010 Ontario Superior Court ruling striking down three prostitution laws. One of them was keeping a common bawdy-house.
After weighing the evidence, Justice Susan Himel found in this case that the bawdy-house law was "overbroad because it extended to virtually any place and allowed for convictions that were unrelated to the objective of preventing community nuisance".
"And the harms it inflicted were grossly disproportionate to the few nuisance complaints received," wrote Supreme Court of Canada Chief Justice Beverley McLachlin last December in upholding Himel's ruling. "The effect of preventing prostitutes from working in-call at a regular indoor location was to force them to choose between their liberty interest (obeying the law) and their personal security."
Later in the ruling, McLachlin wrote that because the "bawdy-house provision makes the safety-enhancing method of in-call prostitution illegal, the application judge concluded that the bawdy-house prohibition materially increased the risk prostitutes face under the present regime. I agree."
"First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards," the chief justice added. "This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks (application decision, at para. 421). Second, it interferes with provision of health checks and preventive health measures. 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."
A cynic might wonder if the Abbotsford police department is recommending a common-bawdy house charge to send a message to the community that it takes the public complaint seriously, notwithstanding the Supreme Court of Canada ruling. A conspiracy theorist might ask if Abbotsford police are deliberately trying to trigger another court challenge.
Abbotsford police Chief Bob Rich is smart enough to know that it's a legal grey area until Bill C-36 is sworn into law.
In the meantime, sex workers should pay attention if the Crown proceeds with a charge of keeping a common-bawdy-house in Abbotsford in the face of McLachlin's reasons for judgement.
That's because if the Crown succumbs to the demands of Rich's department, it means that the head of B.C.'s criminal-justice branch, Joyce DeWitt–Van Oosten, is prepared to damn the torpedoes regardless of what Canada's highest court has decreed.