Ontario Superior Court judge strikes down prostitution law
Globe and Mail Update
Published Tuesday, Sep. 28, 2010 1:12PM EDT
Last updated Tuesday, Sep. 28, 2010 1:56PM EDT
Ontario’s prostitution law fell Tuesday after a judge ruled that it endangers the very women it is meant to protect.
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In a landmark decision striking down the core of the controversial law, Ontario Superior Court Judge Susan Himel said that the law forces women to operate their business furtively in an atmosphere of constant secrecy and danger.
“By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance,” Judge Himel said in her 131-page ruling which took almost a year to produce.
“I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public,” she later added.
The ruling means that the law can no longer be enforced in Ontario. If the decision were to be upheld on appeal, it would topple the use of the prostitution provisions across the country.
In the short term, however, the Ontario Crown is expected to seek a stay of execution that would permit police to temporarily continue enforcing the law.
Three prostitutes launched the challenge in an attempt to bring Canada into line with other nations that have relaxed their enforcement of prostitution, including New Zealand, Australia and Germany. In particular, the litigants challenged three key provisons relating to communicating for the purpose of prostitution, living off the avails and keeping a common bawdy house (brothel).
The litigants would have viewed winning on one of them as a major triumph. They hardly dared to imagine gutting the law entirely.
“We got everything,” the lawyer behind the challenge, Alan Young, yelped as he read the concluding portions of the decision. “We did it!”
Mr. Young said that the judge refused to suspend the effect of her decision while the government moves to fill the legislative gap.
“It takes effect right now,” he told reporters at Toronto’s downtown courthouse.
If upheld on appeal, the decision will plunge Parliament back into the extremely divisive and complicated job of criminalizing an activity that is not itself illegal.
Indeed, successive governments have been branded hypocritical for taking a legal act and erecting criminal impediments to every aspect of carrying it out.
Judge Himel said that any doubt about the dangers to women was dispelled when serial killer Robert Pickton’s targeted women in a killing spree at his Vancouver pig farm.
She heard evidence during a weeklong hearing last year that as many as 300 sex-trade workers, most of whom were street prostitutes, have disappeared since 1985.
“It is estimated that street sex work makes up less than 20 per cent of prostitution in Canada, but they appear to account for more than 95 per cent of the homicide victims and missing women,” said a key witness for the litigants, Simon Fraser University criminologist John Lowman.
Judge Himel stressed that several other provisions relating to the sex trade remain in effect. These include prohibitions against child prostition; impeding pedestrian or vehicular traffic; and procuring.
She said that these are sufficient to give police the power to keep prostitutes from bothering passersby or turning neighbourhoods into sleazy dens of iniquity.
Judge Himel also said that pimps who threaten or commit violence against prostitutes can still be prosecuted using other sections of the Criminal Code.
“In conclusion, I respectfully reject the argument made by the (Crown) that a legal vacuum would be created by an immediate declaration of invalidity in this case,” she said.
However, Judge Himel gave the Crown a 30-day window in which to make arguments against legalizing bawdy houses on account of a concern that “unlicenced brothels may be operated in a way that may not be in the public interest.”
Mr. Young tried to prove that the women’s constitutional right to life, liberty and security were jeopardized by repressive laws that exacerbate the perils of a notoriously hazardous profession. The litigants argued that there is no harm to a sexual act between a consenting prostitute and her client.
Sporadic attempts have been made over the years to chip away at aspects of the prostitution law, but the challenge was the first in two decades to aim for a broad sweep of its provisions.
With the Charter challenge almost certain to reach the Supreme Court of Canada, both sides amassed a vast body of evidence, including dozens of witnesses.
Lawyers for the federal and Ontario Crown focused on proving the inherent dangers of prostitution – whether it is conducted in a car, an open field or a luxurious boudoir. They also argued that prostitution is inherently degrading and unhealthy, and should not be encouraged as a ‘career choice’ for young women through a slack legal regime.
The prosecutors urged Judge Himel not to intrude on the terrain of legislators who have studied and vigorously debated prostitution provisions. They said that, even if prostitution were made legal and moved indoors, it would still entail a high degree of danger its practitioners.
“Any time you are alone with a john, it is dangerous,” federal Crown Michael Morris told Judge Himel. “There is no safe haven when you are involved in prostitution. There is overwhelming evidence that johns can become violent at any moment.”
However, Prof. Lowman countered that prohibiting communication renders prostitutes unable to “screen” potential clients, hire security or move behind the relative safety of closed doors.
He said that he purposely delayed his challenge until after the Pickton trial, cognizant that the Supreme Court insists on strong evidence of actual harm, rather than abstract arguments.
Prof. Lowman also testified that, according to public opinion polls and research, a majority of Canadians believe that prostitution between consenting adults should be legal.
“So do the Bloc, Liberals and NDP, according to the 2006 parliamentary report of the Subcommittee on Solicitation Laws,” he said. “Clearly, Canadians are ready to end what one judge has characterized as the ‘Alice in Wonderland’ state of Canadian prostitution law.”
Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to licence body-rub establishments despite the general understanding that many sell sexual services.
“We have this strange situation where the biggest pimps in the country right now are municipal governments,” Prof. Young told the court. “It’s just another irrationality of the law.”
The hearing grew heated when Prof. Lowman said that many of the Crown’s experts have a history of lying to foreign legislators, conducting simplistic research, fabricating scare stories and employing absurd rhetoric to help stall the global liberalization of prostitution laws. He accused them of travelling the world trying to convince permissive governments of their errors.