Western Canadian sex-trade activists and legal advocates are declaring a partial victory following the Ontario Court of Appeal’s March 26 ruling that strikes down the laws against keeping a bawdyhouse and living off the avails of prostitution.
But the court’s majority decision to continue to criminalize communication for the purpose of prostitution frustrates Pivot Legal Society lawyer Katrina Pacey, who says she gasped when she heard that part of the law was upheld.
Pacey says quashing the communication law is of “utmost importance” to her clients, who are still pursuing a similar sex-work case in BC.
“The evidence is clear that the communication law places the most vulnerable sex workers in exceedingly dangerous circumstances and creates barriers to police protection,” she says. “We just can’t see how that level of harm is justifiable.”
In its landmark ruling in the case brought by sex workers Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, the Ontario court’s five justices struck down the Criminal Code ban on brothels, meaning sex-trade workers there soon will be allowed to set up shop in safe, indoor spaces.
“I would like to thank the Ontario Court of Appeal justices for pretty much declaring sex workers persons today,” Scott told reporters. “I didn’t think I would see it in my lifetime, but here we are.”
“It’s good the courts have recognized prostitution can be harmful if it’s not conducted in safe conditions,” agrees Vancouver sex-trade activist Jamie Lee Hamilton. “To allow brothels, that’s a safe step forward.”
The decriminalization of bawdyhouses could further lessen the likelihood of raids on gay bathhouses, too, since the law has historically been used to justify such raids. But the ruling makes no mention of the continued criminalization of “indecent acts” in bathhouses, the clause typically used to target gay men.
“Hopefully, we won’t see any more raids,” Hamilton says.
As for living off the avails of prostitution, the court ruled that only pimps and anyone else benefiting from “circumstances of exploitation” should be prosecuted from now on. That means sex-trade workers could hire drivers, bodyguards and receptionists to be paid from the money they make.
As the avails law stood, the Ontario court said it “criminalizes non-exploitative commercial relationships between prostitutes and other people” and violates sex workers’ Charter rights to “life, liberty and security of the person.”
However, the majority of the appeal court upheld the ban on communicating for the purposes of selling sex, citing public concerns about noise, impeding traffic, children witnessing acts of prostitution, harassment of residents, drug use, unsanitary acts, violence, unwelcome solicitation of women and children by customers, and unwelcome solicitation of male residents by prostitutes.
Still, two of the five judges disagreed, saying they would have struck down the communicating law because it has a severe impact on street-level sex workers.
“The world in which street prostitutes actually operate is the streets, on their own. It is not the 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,” Justice James MacPherson wrote with concurrence from Justice Eleanore Cronk.
Said MacPherson of the majority decision on communicating, “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.”
Hamilton agrees with the dissenters on the dangers of maintaining the prohibition on communicating. “It creates more dangers because they have to jump into cars and get away from prying eyes,” she says.
Pacey points out that the Ontario ruling is not binding on the rest of Canada until it has gone to the Supreme Court of Canada, a move she expects from the federal government when it appeals.
“It’s at that point we hope all the provisions will be struck down and we will have a largely decriminalized sex industry,” Pacey says.
Federal Justice Minister Rob Nicholson says the government is reviewing the decision and considering its legal options.
“As the prime minister has said, prostitution is bad for society and harmful to communities, women and vulnerable persons,” Nicholson says in a press release. “The Ontario Court of Appeal has affirmed the validity of the ban on solicitation for the purposes of selling sex. We continue to see a social need for laws to control prostitution and its effects on society.”
The March 26 Ontario ruling stems from an appeal by the federal government of a September 2010 decision by Ontario Superior Court Justice Susan Himel, which struck down all three Criminal Code provisions in the province.
In the BC case, the Supreme Court of Canada heard arguments Jan 19 on the federal government’s appeal of a decision allowing BC sex workers to challenge Canada’s criminal laws on adult prostitution. But it wasn’t the laws themselves at issue before the top court then. Rather, lawyers addressed whether or not those attempting to challenge the laws in BC have the legal right to present their case.
“My clients are prepared to pick up whatever is left and run with those,” Pacey says now.
Hamilton hopes the BC case will address the communicating law.
“At some point, these two cases will merge,” she predicts.
For Hamilton, the continuing court battles spurred by federal government appeals are frustrating. “It doesn’t make sense to keep wasting all that money when the public is saying decriminalize it all,” she says.