Why the Harper government is in a big pickle!

The Harper government is a big prick ..... sorry, pickle

Prostitution laws struck down by top court, leaving tough-on-crime Conservatives in a pickle

Legal brothers could be reality within a year

Tobi Cohen
Saturday, December 21, 2013

OTTAWA – Canada’s highest court has struck down prostitution laws as unconstitutional, leaving the tough-on-crime federal government in the uncomfortable position of having to draft new rules that could legalize brothels and red-light districts by next Christmas.

The Supreme Court of Canada ruled Friday that the laws prohibiting being in a bawdy-house; living off the profits of another’s prostitution; and soliciting sex in public violated the right of prostitutes to life, liberty and security of the person. This right is guaranteed under the Charter of Rights and Freedoms.

The court said its ruling will not come into effect for a year, which gives the federal government time to consider how to redraft sections of the criminal code dealing with prostitution.

With the future of the world’s oldest profession now squarely on the national agenda, Justice Minister Peter MacKay on Friday said the government won’t sit idly by.

“We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons,” he said in a written statement. “We are committed to the safety of all Canadians and the well-being of our communities.”

But the unanimous judgment of the top court, which was applauded by many sex workers who travelled to Ottawa to hear the decision, will pose a significant challenge for the federal Conservative government.
Here’s what the Supreme Court concluded:

– Bawdy-house laws that make it a crime to be caught unlawfully in what is essentially a brothel are “grossly disproportionate” to the intent of the law, which is to prevent community nuisance.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” wrote Chief Justice Beverley McLachlin, who referenced the case of convicted serial killer Robert Pickton. Pickton targeted prostitutes in British Columbia. “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets is a law that has lost sight of its purpose.”

– Living off the profits of prostitution was found to be “overbroad” in that it also criminalizes those who “increase the safety and security of prostitutes,” such as legitimate drivers, managers and bodyguards.

– While the Ontario Court of Appeal had earlier concluded that a law against communicating in public for the purposes of prostitution complied with the Charter, the top court disagreed, and restored a lower court ruling that it does not.

The court found the law was “grossly disproportionate” in that it removes the ability of prostitutes to enact safety measures like screening clients in public in order to avoid drunk or potentially violent encounters.

“These appeals and the cross-appeals are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not,” McLachlin wrote. “These restrictions on prostitution put the safety and lives of prostitutes at risk and are therefore unconstitutional.”

University of Ottawa law professor Carissima Mathen suggested the government now faces difficult options.
It could simply outlaw prostitution, an activity that’s always been legal even if many associated practices are not, she said. Or it could enact laws that “don’t cut off safety valves and protective mechanisms for sex workers,” such as the ability to screen clients in a public place for signs of belligerence, avoid street prostitution or hire body guards and drivers.

Mathen said she foresees the emergence of “indoor sex locations,” not necessarily commercial brothels, and suggested it may fall to municipalities to regulate them, rather than to the federal government to deal with them under the Criminal Code.

The government might also take a page from the Ontario Court of Appeal which suggested wording that would make the law against living off the profits of prostitution Charter compliant, she said.

“You can read down the …  law so that it requires some harmful aspect other than just the economic transaction,” she said, citing evidence of exploitation as an example.

Mathen said reworking the law against communication for the purposes of prostitution laws could be “trickier.” The goal would be to regulate the “time, place and the manner” in which prostitutes, Johns and those recruiting prostitutes engage in their activities which, she said, could effectively lead to the creation of red-light districts.

“It’s a great victory for the claimants in this case,” she said.

The landmark, unanimous ruling by a full panel of nine top judges – six of them men – was met with a mixture of applause, tears of joy and disappointment as many groups, both for and against the decriminalization of the sex trade, awaited the decision in the courthouse lobby Friday morning.

“Yes, great day for Canada, Canadian women from coast to coast,” declared Terri Jean Bedford, bedecked in dominatrix attire.

Bedford was one of three plaintiffs who launched the legal challenge to prostitution laws before the Ontario Superior Court in 2009.

“I am shocked and amazed that sex work and the sex work laws that affect our lives on a daily basis will, within a year, not cause us harm,” added an emotional fellow plaintiff, Amy Lebovitch.

Valerie Scott, the third plaintiff, said she hopes the federal government will simply stay out of the debate and leave the regulation of the sex trade to municipalities through bylaws.

“If the Harper government rewrites laws they will fail and the next generation of sex workers will be right back here. So let’s not be stupid, federal government, let’s do something progressive,” she said.

“They didn’t rewrite the abortion law. They didn’t rewrite when gay and lesbian laws were decriminalized. They shouldn’t rewrite when we have our rights. The sky is not going to fall in.”

Not everybody was so pleased with the decision.

Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, called it a “sad day.”
“We have now confirmed that it’s okay to buy and sell women and girls in this country,” she said. “I think generations to come, our daughters, their granddaughters and on will look back and say, ‘what were they thinking?’”

While the ruling considers those sex workers who sell their bodies by choice, she suggested it doesn’t take into account those who are forced into it due to poverty, addiction and a lack of access to social services, including many aboriginal women and victims of human trafficking.

Don Hutchinson of the Evangelical Fellowship of Canada said he hopes the government will use this opportunity to make prostitution illegal and has already submitted a report to Parliament on the subject.
“If there’s no replacement legislative scheme, then it’s open season in regard to prostitution,” he said.

tcohen@postmedia.com
Twitter.com/tobicohen