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Supreme Court strikes down laws regulating sex work

Parliament cannot impose laws 'at the cost of health, safety and lives of prostitutes' a unanimous court said

Terri-Jean Bedford, the applicant who argued that Canada's current sex-work laws are unconstitutional. Credit: Marcus McCann

Over-broad and grossly disproportionate.

That's what the Supreme Court calls Canada's laws related to sex work, in a landmark ruling that has started the clock on fully decriminalizing sex work.

In one year, the court's ruling will take effect, striking down all laws that currently criminalize everything but sex work itself — street soliciting, living off the profits of prostitution, owning a brothel and pimping — but, until then, prostitution in Canada will remain an indictable offence.

While the clock ticks down on the 365 days until Canada loses the power to arrest and prosecute sex workers, the justices have left the door open for Ottawa or the provinces to step in and lay down new laws to combat prostitution. But the court put a limit on the state's power.

"Parliament has the power to regulate against nuisances," Chief Justice Beverley McLachlin wrote in the unanimous decision. "But not at the cost of the health, safety and lives of prostitutes."

The court repeatedly found that Canada's laws put sex workers in jeopardy, violating Section 7 of the Charter of Rights and Freedoms, which protects Canadians from laws attacking their life, liberty and security.

"A law that prevents street prostitutes from resorting to a safe haven such as Grandma's House [in Vancouver] while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose," McLachlin writes.

The laws were vigorously defended by the Government of Canada, with its provincial counterparts at its side, which argued that prostitution is a "lifestyle choice" and therefore the government has the right to regulate the nuisance and ensuing social ill.

The Court repudiated that idea, calling the laws — which do not criminalize sex work itself — the equivalent of banning cyclists from wearing helmets.

"Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called 'constrained choice' — these are not people who can be said to be truly 'choosing' a risky line of business."

The court's ruling is about as serious a loss as can be imaginable for the government, which is now put in the awkward position of either trying to tackle the thorny legal maze of regulating prostitution or simply leaving the laws to fall on their own.

An Ontario superior court had previously passed down a similar decision to the Dec 20 ruling, but that was partially overturned by the Court of Appeal, which found that communicating for the purposes of prostitution — a broad law that was usually used to capture sex workers who attempted to screen their clients — to be reasonable.

It was expected that the highest court might recommend changes to the law, based on the Court of Appeal's finding. That's not what happened. Instead, the Supreme Court threw out the appeal court's reasoning and axed the laws altogether.

But the justices left the door open for the government to install some new regulations on how Canadians sell sex.

The ruling does not tackle the merits of criminalizing sex work itself; rather, it found that the existing laws had serious, negative effects on the safety of sex workers.

"That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted," McLachlin writes. "It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements to the existing regime."

Xtra is following this story.