Key Anti-Prostitution Laws Struck Down By Ontario Court

[ronthecivil]

They've yet decided that it's worth the money they get from it, or else they wouldn't be doing it.

[Buggernut]

There's male prostitutes too....

[Buggernut]

When your other option is going through withdrawl cold on the street it's "impressive" (in a depressing way) what people will do.

[The Situation]

When your other option is going through withdrawl cold on the street it's "impressive" (in a depressing way) what people will do.

[Wetcoaster]

Two editorials with differing viewpoints on the court decision.

The Vancouver Province believes that the judge went too far and seems to be in line with the earlier Supreme Court of Canad decision on this issue which ruled such legislation was a reasonable Charter limitation:

In On Liberty, John Stuart Mill famously argues that individuals should be free to act as they wish — and be unimpeded by government — so long as their actions do no harm to others.

This is an important principle to keep in mind when considering prostitution in general, and Tuesday's controversial court ruling in Ontario striking down the laws against keeping a bawdy house, communicating for the purposes of prostitution and living off its avails.

Even before the ruling, prostitution was legal in Canada. Arrangements to buy and sell sex in private were and remain legal if both parties are consenting adults. The laws struck down by Ontario Superior Court Justice Susan Himel were Parliament's attempt to protect Canadians from being solicited on street corners, having their neighbourhoods overrun by the degrading activity and having brothels from opening next to their homes. The living-off-the-avails law was to prevent pimps from preying on the normally damaged young people who sell their bodies out of desperation.

Parliament, not the courts, should strike the balance between the rights of prostitutes and other citizens. The court should never have accepted the argument that the prostitution laws make it more dangerous and therefore unconstitutional. Prostitution will always be dangerous and the same argument could be made by a drug dealer in opposition to drug laws.

People who choose to sell sex should have that right. But the greater society also should have the right not to have the degrading activity conducted in public. While new laws may be needed to lessen the danger to prostitutes, this court ruling goes too far.

[ronthecivil]

^

Well, at least they are thinking about it. And despite the differences in opinion I think there is common ground possible, at least the rhetoric isn't off the board on this issue. There are valid points from all sides.

[Wetcoaster]

^

Well, at least they are thinking about it. And despite the differences in opinion I think there is common ground possible, at least the rhetoric isn't off the board on this issue. There are valid points from all sides.

[ronthecivil]

I do not see a lot of room for compromise between the two views.

As federal Minister of Justice and Attorney General Rob Nicholson had flatly rejected a majority recommendation from the House of Commons status of women committee that federal prostitution laws be amended to stop charging prostitutes and start prosecuting only those procuring sex, or exploiting prostitutes, such as pimps and bawdy house owners.

"We have no intention of changing any of the laws relating to prostitution in this country," Nicholson told the committee during hearings.

"We have laws with respect to street soliciting or soliciting in public places that criminalizes completely the activity — the individual that is trying to purchase that service and the individual that is offering it. And (those) will continue to be the laws of this country."

Unless the Supreme Court of Canada is prepared to reverse itself, it would my bet the laws will continue pretty much as is. I doubt your are going to find a lot of support for changes from the provincial and municipal governments who have to deal with prostitution on the ground nor I suspect from the police.

Even advocates of change note this is not a black and white issue:

http://www.theglobea...article1735148/

[Wetcoaster]

I thought (at least the ontario court, I guess it can go up to the fed supreme court?) that they already struck it down due to charter. If the upper court happened to agree with the ontario court wouldn't they have to non withstanding it to keep the as is?

Incidentily, I would think decriminalising (as making it a fine or what not? An outreach? Something?) the prostitute, ups the penalty to those procurring, and super ups the penalty to those living off the avails would be about right, though obviously one would have to look at different models around the world to see what works. It's certainly not easy to figure a solution but as long as they make their goals the maximisation of safety, the minisation of explotation, and the elmination of organised crime that would probaby be the best path. Research around the world to see what policies best acheive those goals would probably be the way to find the path to comprimise.

[ronthecivil]

The next step is the Ontario Court of Appeal (OCA. This decision came from the Ontario Superior Court of Justice (equivalent to the BC Supreme Court) which is a s.96 court with a federally appointed judge. The provincial court with a provincially appointed judge in Ontario is the Ontario Court of Justice (equivalent to the BC Provincial Court).

http://www.ontariocourts.on.ca/scj/en/

http://www.ontariocourts.on.ca/ocj/en/

Given that the Supreme Court of Canada ruled contrary to this decsion in 1990, in all likelihood the OCA will overturn the lower court ruling. In that case it can then be appealed to the SCC which has the power to reconsider its 1990 decision.

The federal government has been quite consistent that they will not be changing the law regarding prostitution and unless the SCC reverses itself on this issue which does not seem likely, the chance of change is pretty slight.

It is difficult to compromise when the two opposing views start from entirely different philosophic bases.

[Wetcoaster]

Not all outreach workers who advocate for prostitutes are in favour of the decision.

Laura Holland works with the Aboriginal Women's Action Network, a Vancouver-based non-profit organization that offers emotional support to aboriginal women who have survived prostitution. Holland disagreed with Shearman and Justice Himel's decision

"We think striking down the laws will really only benefit pimps and johns and traffickers," Holland said. "The ruling leaves an impression that prostitution is OK as a profession to enter into, and the women we're most concerned about, aboriginal women, are the most marginalized."

Holland said aboriginal women are "absolutely overrepresented" in street prostitution, and the women who come to the group for help often struggle with addiction or have mental illnesses.

Holland said women spent days crying when they heard the news that the laws were struck down.

"Our first thoughts were, 'How could they do this to us? How could they throw us to the wolves,'" she said. "One of the things that has really sickened us is the pro decriminalization advocates have used the suffering of our sisters in the Downtown Eastside as a tactic to fight for decriminalization. Quite often we say the suffering of our sisters has been appropriated by the pro-decriminalization camp."

Holland said prostitution for aboriginal women is a consequence of reserve systems, residential schools, foster homes, racism and sexism.

[suolucidir]

No but I have found that are a large range of views on everything including sex. To some people, it is probably no different than selling your body with a backbreaking job.

[Wetcoaster]

The federal government is in the Ontario Court of Appeal seeking a stay of the decision by Judge Himel striking down certain Criminal Code provisions relating to prostitution:

A stay must be granted on a recent Ontario Superior Court ruling that struck down three anti-prostitution laws or it would result in a "social experiment unprecedented in this country," a lawyer representing the federal government argued Monday.

In late September Ontario Superior Justice Susan Himel ruled the laws — operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution — put the safety of prostitutes at risk and contravened the Charter of Rights and Freedoms.

Michael Morris on Monday told Ontario Court of Appeal Justice J.A. Rosenberg that "irreparable harm" would be created if the decision went into effect Saturday as planned. He said it should not be up to one justice from one single court to overturn Parliament's laws without a complete constitutional review.

The government also argued that the ruling hampers the policing of pimps who exploit prostitutes, will increase prostitution in communities across the country and harm diversion programs already in place for both sex-trade workers and johns.

The proceedings Monday were expected to take up to five hours and there was standing room only for the dozens of media who attended.

If the federal Justice Department loses its bid for a stay, sex-trade workers would be able to continue their work out in the open, without fear of prosecution from police and the courts.

Prostitution is not illegal in Canada, but many of the activities associated with the world's so-called oldest profession are.

The government is also seeking to appeal the 131-page decision, citing that changing Canadian laws should not fall under the responsibility of one judge. In a legal brief, the government said abolishing these laws would lead to an increase in other illegal activities, such as drug-trafficking, violence, and johns patrolling the streets.It would also create a legal uncertainty between Ontario and other jurisdictions in the country, according to the brief.

But Alan Young, the lawyer representing three sex-trade workers who brought the issue before the Ontario Superior Court, said countries that have legalized prostitution have not seen an increase in other illegal activities.

"Their claims are really speculative opinions," said Young.

http://www.canada.com/news/Federal+lawyers+predict+irreparable+harm+prostitution+ruling+upheld/3866559/story.html#ixzz163J3AfWJ

[Wetcoaster]

The Ontario Court of Appeal has stayed the decision of Ontario Superior Court Justice Susan Himel - meaning the three Criminal Code provisions relating to prostitution struck down as unconstitutional remain in force pending the appeal by the Crown:

The Ontario Court of Appeal on Thursday granted a stay on three prostitution-related laws that had earlier been declared unconstitutional.

Justice Marc Rosenberg said he was concerned with the "legislative void" that would occur if this decision went ahead.

The stay expires on April 29, 2011.

Ottawa and Ontario argued last month that a stay should be granted until an appeal can be heard by the Supreme Court of Canada, a process that can take up to a year or longer.

Prostitution is not illegal in Canada, but many of the activities associated with the world's so-called oldest profession are.

Ontario Superior Court Justice Susan Himel ruled in September the laws prohibiting operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution endanger the lives of sex-trade workers by forcing them to ply their trade in the underground.

If the federal Justice Department and Ontario had lost the bid for a stay, sex-trade workers would have been able to continue their work in the open, without fear of prosecution from police and the courts.

Speaking in Ottawa, shortly after the court's decision was made public, Justice Minister Rob Nicholson, said any change to Canada's prostitution laws "can have a devastating effect on communities and neighbourhoods."

In a prepared statement the minister said: "It is the position of the Government of Canada that these provisions are constitutionally sound."

"The provisions denounce and deter the most harmful and public aspects of prostitution. They also ensure that the police have the tools necessary to continue to address the significant harms that flow from prostitution, both to communities and to the prostitutes themselves, along with other vulnerable persons," Nicholson said in the statement.

But Alan Young, the lawyer representing three sex-trade workers who brought the issue before the Ontario Superior Court, said change is needed.

"My position has always been that security of a vulnerable population must be protected at any cost," he told a group of reporters in Toronto. "We don't need to maintain a law which is not enforced on a frequent basis. You don't see these laws being used much because there isn't the type of issues and problems the government claims would arise if the sex trade was unregulated."

Sex-trade worker Nikki Thomas said her human rights are at stake.

"This is about women's rights this is about giving us a chance to employ security, the chance to declare our income legally, to invest in our futures, to take care of our families and partner without being threatened with any source of legal repercussions."

http://www.canada.com/news/Prostitution+laws+stay+place+Ontario/3917349/story.html#ixzz16yw6q5Nh

[old_time_hockey]

Operationg @@@@ or get off the pot again eh?

Why the heck are our laws written in such round about ways instead of dealing with the problem at hand? Your either against prostitution or you think it should be legal.

That said, one would think a baudy house would violate zoning laws!!!

Seems pretty clear. Either outlaw it entirely, or legalise it and zone for places for it to happen.

[ronthecivil]

This is almost the exact reason that while Frat houses are allowed on UBC Campus, Sorority houses are not. Because at the time when X number of women lived together the home would be declared a common baudy house.

[Wetcoaster]

Arguments begin Monday in the appeal of the lower court ruling before a five judge panel of the Ontario Court of Appeal. Madame Justice Himel's ruling in the Ontario Superior Court which found some provisions of the Criminal Code in relation to prostitution unconstitutional and struck down:

* keeping a common bawdy house (s.210(1)),

* communication for the purposes of prostitution (s.213(1)(c )), and

* living on the avails of prostitution (s.212(1)(j)), all on the basis that the laws unnecessarily endanger prostitutes working on the street.

The government will be relying upon the SCC case of Reference re ss. 193 & 195.1(1)(c ) of Criminal Code (Canada), (the prostitution Reference), [1990] 1 S.C.R. 1123 which is the leading decision of the Supreme Court of Canada on the right to freedom of expression under section 2( of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada. The Court held that the Criminal Code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression however it could be justified under section 1 of the Charter and so it was upheld.

I suspect in this case the court will rule that the impugned provisions are constitutional and that it will be up to Parliament to change the laws.

Johns openly soliciting prostitutes near school yards, brothels with naked women dancing in the windows and Canada becoming a destination for trafficking young girls — these are some of the doomsday scenarios the federal government cautions may occur if Ontario’s highest court agrees this week to uphold an earlier decision to decriminalize the sex-trade industry.

Ottawa and the provincial government will begin arguments to a five-justice panel Monday at the Ontario Court of Appeal on why a lower-court judge erred last year when she struck down three prostitution-related laws as unconstitutional.

In a controversial, 130-page decision which took more than one year to prepare, Ontario Superior Court Justice Susan Himel concluded that the provisions prohibiting operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution contravene a person’s right to safety and liberty and endanger sex workers by forcing them to ply their trade underground.

To the three women who launched this constitutional challenge five years ago, this appeal has little to do with morality or public opinion of selling one’s body for money but the obligation the law has to protect all its citizens, regardless of occupation.

“The laws are not working at all,” said complainant Valerie Scott, a longtime prostitute and massage parlour worker. “We need occupational health and safety options. We need to be treated like the legitimate business we are.”

Scott, who is also the legal adviser for the national Toronto-based group, Sex Professionals of Canada, argues that the governments are using “fear mongering” tactics to scare the public about the realities of the sex trade industry. She contends that if prostitutes were permitted to work openly, they would be able to organize in groups for protection, get away from pimps and not be afraid to report abuses by clients to the police. They also would be able to have more financial security, pay taxes and support themselves without fear of prosecution.

“It also means that the ones who choose to be in the industry, the ones who are currently in it, won’t be beaten, raped robbed and murdered,” said Scott.

But in a lengthy factum filed three months ago, the government stated its position that sex workers should have no expectations of being safe when they choose to enter into an illegal trade, one that is rife with crime, drugs and violence. Furthermore, the dangerous conditions surrounding the underground industry are a result of their efforts to evade the law, and should not justify those laws being changed.

This Ontario appeal is being watched closely, because it is one that can set a precedent in jurisdictions across the country. The decision — anticipated anywhere between six to 12 months from now — also likely will make its way up to the Supreme Court of Canada.

Currently, there are more than 30 lawyers involved in the case on behalf of two dozen women, civil-liberties and religious-based groups, who have been granted intervener status.

Yet York University professor Alan Young, who represents Toronto dominatrix Terri-Jean Bedford in the appeal, said the court has a straightforward task for the next five days, one that does not involve forecasting what may happen if the activities associated with prostitution become legal or what provisions should be put in their place.

“For me, this case is about the present, not the future,” he said. “There is no question that the court will need to make an informed decision but I don’t see the sky falling as a result of it.”

The panel’s mandate surrounds to what extent should laws be responsible for making the sex trade dangerous.

Anything outside of that realm, are issues that should be argued in the House of Commons rather than in a courtroom, said Young.

“There has to be a causal connection established between state action and the law and the deprivation of security,” he added. “The obvious argument which emerges is that it’s not the law but it’s the psychopaths that prowl the streets who become bad johns. The law is not responsible for that. But what we were able to establish . . . that the three provisions do contribute to the situation by preventing sex trade workers from accessing safer environments from which to work.

But Kathleen Lahey, a law professor specializing in sex equality at Queen’s University in Kingston, Ont., argues that this case should not be seen as an advancement of women’s rights.

“It won’t do anything for women’s equality,” she said. “It will just create another huge image of women as commodities to be purchased and sold.”

It’s also unfair that a small group of sex workers are using their experiences to speak for such a vulnerable group in society she said.

Lahey also thinks it is “naive” to think abolishing these laws will not lead to more human trafficking and younger girls forced into the industry.

“Real reform in this area would call for a complete examination of the issue, to protect women from sexual predators who want to give them money and (it would) make sure women have access to significant economic resources so they don’t have to go onto the street into sex-based commercial relationships in order to survive,” said Lahey.

The Women’s Coalition for the Abolition of Prostitution says it’s ridiculous that laws currently in place to protect them also are being used to decriminalize the actions of johns and pimps.

http://www.canada.com/news/Ontario+court+hear+appeals+against+pivotal+prostitution+ruling/4934005/story.html#ixzz1P5gcni1c

[Ambulocetus]

As with all "consensual crime," criminalizing it makes it much more dangerous and provides huge profits for brutal criminal organizations.

I loathe the neocon ideology that government has no business interfering in business practices, medical care, social support, etc., etc., but they impose (with great satisfaction) their idiot beliefs and perceived morality on the general population.

[Homo Sapiens' Sapience]

As with all "consensual crime," criminalizing it makes it much more dangerous and provides huge profits for brutal criminal organizations.

I loathe the neocon ideology that government has no business interfering in business practices, medical care, social support, etc., etc., but they impose (with great satisfaction) their idiot beliefs and perceived morality on the general population.

[ronthecivil]

As with all "consensual crime," criminalizing it makes it much more dangerous and provides huge profits for brutal criminal organizations.

I loathe the neocon ideology that government has no business interfering in business practices, medical care, social support, etc., etc., but they impose (with great satisfaction) their idiot beliefs and perceived morality on the general population.