(...) no religion-inspired law or government policy should exist if there is no secular justification for it. The State should deal only with life, health, property and other things of this world. (From my Sept. 7, 2010, post, Criticising Religion.)
Canadian laws against prostitution will remain in force for now. An earlier decision had struck down key provisions of the Criminal Code of Canada which dealt with communicating for the purpose of prostitution, keeping a common bawdy-house and living off the avails of prostitution. Justice Marc Rosenberg of the Ontario Court of Appeal ruled that it would be harmful to the public interest to allow a lower court ruling to immediately come into effect before a recently launched appeal is finally heard. However, the stay is only effective until April 29, which means the prosecution must make its case by then.
In Canada, prostitution per se is not a crime. Rather, the law forbids the solicitation or proposal of payment for sexual services. So while prostitution is technically legal, virtually every activity associated with it is not. The Criminal Code prohibits “communication for the purpose of prostitution.” It also prohibits keeping a common bawdy house for the purpose of prostitution. Some of the legislation was enacted as recently as 1985 in an attempt to deal with the public nuisance created by streetwalkers. But due to “bawdy-house” legislation, the obvious alternative, that is working more safely indoors, was prohibited.
This led to a constitutional challenge launched in 2009 by a three women who sought to have certain sections of the Criminal Code relating to prostitution struck down. The provisions at hand were (a) living off the avails of prostitution of another person, (b) stopping or attempting to stop and communicate with someone for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute, and (c) keeping a “common” bawdy-house. The applicants claimed those provisions of the criminal code violate section 7 of the Canadian Charter of Rights and Freedoms, which says: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Furthermore, they claimed that the provision concerning the keeping of a bawdy-house violated section 2(b) of the Charter, which guarantees the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication.
In her ruling, Ontario Superior Court Justice Susan Himel agreed that some provisions of the Criminal Code actually contribute to the dangerous climate in which sex-trade workers must earn their living. “These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms. I have found that these laws infringe the core values protected by section 7 and that this infringement is not saved by section 1 as a reasonable limit demonstrably justified in a free and democratic society,” wrote the judge.
It should be noted that she didn’t just strike down the provisions as requested. While sections 212(1)(j) (living off the avails) and 213(1)(c) (communicating for purposes of prostitution) were indeed struck down, the provision concerning bawdy-houses was merely changed. She left the specific provision, section 210, intact, but changed its definition at section 197(1) to remove the reference to prostitution. If acts of indecency are performed in a house kept for that purpose, it will continue to be considered a bawdy-house.
The judge makes clear that only those provisions have been struck down. Other provisions such as stopping or attempting to stop a motor vehicle for the purpose of prostitution, or impeding or redirecting pedestrian or vehicular traffic for such a purpose continues to be illegal. Also, many provisions concerning the offense of “procuring” remain in effect, as do those dealing with minors.
The decision is now on the CanLii website to be read by all. Personally, I find the decision to be well thought out. If nothing else, the judge appears to be well informed of the true dangers regarding prostitution, that is, the powerlessness of prostitutes before the law and those who would do them harm. Politicians, of course, aren’t so sure. They want votes and they know people who oppose prostitution in any way, shape or form often frequent polling stations. Oh well, with all the debts and deficits already at hand, what’s a few more million, eh?
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