A five-member panel of judges on the Ontario Court of Appeal has upheld a ruling overturning a Criminal Code ban on operating a common bawdy house and living off the avails of prostitution.

In the case of living off the avails, the Ontario Court of Appeal read in the phrase “in circumstances of exploitation” to allow any prosecution to proceed.

In 2010, Ontario Superior Court Justice Susan Himel struck down both laws after the operators of a "Bondage Bungalow" near Toronto argued that these sections of the Criminal Code infringed on their constitutional guarantees to freedom of expression and security of the person.

Himel's ruling also struck down the law banning communicating in public for the purpose of solicitation.

Prostitution is legal in Canada, but it's against the law to stand on a street corner and negotiate the sale of sex.

Himel concluded in 2010 that this provision deprives street prostitutes of an ability to screen customers, which, according to her, was an “essential tool” to increase their safety.

However, three of the five Ontario Court of Appeal judges—Gloria Doherty, Kathryn Feldman, and Paul Rosenberg—overturned that aspect of the decision.

In their majority ruling, they stated that Himel "erred by simultaneously under-emphasizing the importance of the legislative objective and over-emphasizing the impact of the communicating provision on the respondents’ security of the person".

"In our view, the application judge substantially understated the objective of the communicating provision when she described its object as targeting 'noise, street congestion, and the possibility that the practice of prostitution will interfere with those nearby'," the three judges stated. "This appears to locate street prostitution towards the low end of the social nuisance spectrum. That is not an accurate reflection of the evidence."

They acknowledged that street prostitution "poses real and grave dangers to the prostitutes themselves", later adding it's also "associated with serious criminal conduct including drug possession, drug trafficking, public intoxication, and organized crime".

The Vancouver-based Providing Alternatives Counselling and Education Society, Downtown Eastside Sex Workers United Against Violence Society, and Pivot Legal Society argued that many street prostitutes can't take advantage of legalizing bawdy houses and living off the avails of prostitution. That's because many won't be able to move indoors or hire bodyguards.

In a dissenting opinion, Judges Eleanore Cronk and James MacPherson agreed with this argument and concluded that the court should have also upheld Himel's ruling striking down the communicating law.

"Even efforts by charities to help street prostitutes move indoors may not succeed while the communicating provision remains in force," Cronk and MacPherson wrote in their minority opinion. "Grandma’s House, a charitable society that provided indoor space for street prostitutes in Vancouver, was established at a time when there were fears of a serial killer preying on prostitutes. (Those fears were, of course, borne out by the conviction of Robert Pickton.) The prostitutes using Grandma’s House still relied on outdoor solicitation to find clients. It is not at all clear that this model could operate while public solicitation remains forbidden."

The former operator of Grandma's House, Jamie Lee Hamilton, issued a statement calling the majority ruling "truly bizarre".

"The decision to strike down the ban on brothels to make in their words sex work safe but then maintains street prostitution to be a a nuisance so the soliciting/communicating section remains in place," Hamilton declared. "The communicating section is the section which places most survival sex workers in grave danger as we saw from the Pickton carnage."

Here are other comments on street prostitution in the dissenting opinion by Cronk and MacPherson:

Accordingly, as the interveners put it, street prostitution will continue to exist. In that context, the communicating provision will continue to impair street prostitutes’ efforts to protect themselves. It will inhibit their efforts to work collectively. It will prevent them from communicating with their clients to assess potential danger. It will continue to drive street prostitutes to isolated, and potentially very dangerous, locations. All this implicates street prostitutes’ personal safety and, in far too many cases, the fragile line between life and death.

The world in which street prostitutes actually operate is the streets, on their own. It is not a world of hotels, homes or condos. It is not a world of receptionists, drivers and bodyguards.

The world in which street prostitutes actually operate is a world of dark streets and barren, isolated, silent places. It is a dangerous world, with always the risk of violence and even death.

My colleagues recognize, correctly, that the effects of two Criminal Code provisions that prevent indoor prostitutes’ safety measures are grossly disproportionate to their valid legislative objectives. I regret that they do not reach the same conclusion with respect to a third provision that has a devastating impact on the right to life and security of the person of the most vulnerable affected group, street prostitutes.

The complete ruling is available here.

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