An Ontario court has thrown out key provisions of Canada's anti-prostitution laws in response to a constitutional challenge by a Toronto dominatrix and two prostitutes in 2009.
Ontario's Superior Court of Justice ruled Tuesday the Criminal Code provisions relating to prostitution contribute to the danger faced by sex-trade workers.
In her ruling, Justice Susan Himel said it now falls to Parliament to "fashion corrective action."
"It is my view that in the meantime these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the charter violations," Himel wrote.
"However, I also recognize that a consequence of this decision may be that unlicensed brothels may be operated, and in a way that may not be in the public interest."
The judge suspended the effect of the decision for 30 days. It does not affect provisions dealing with people under 18.
Federal Justice Minister Rob Nicholson and Rona Ambrose, minister for the status of women, both said the government is concerned about the decision and "is seriously considering an appeal."
Dominatrix Terri-Jean Bedford, Valerie Scott and Amy Lebovitch had argued that prohibitions on keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade force them from the safety of their homes to face violence on the streets.
The women asked the court to declare legal restrictions on their activities a violation of charter rights of security of the person and freedom of expression.
The women and their lawyer, Alan Young, held a news conference Tuesday afternoon and expressed elation.
"It's like emancipation day for sex-trade workers," said Bedford, adding the ball is now in Prime Minister Stephen Harper's court. "The federal government must now take a stand and clarify what is legal and not legal between consenting adults in private."
'This decision means that sex workers can now pick up the phone and call the police and report a bad client.' — Valerie Scott
Scott called it an amazing victory, saying the decision lessens the risk of violence for sex workers.
"We don't have to worry about being raped and robbed and murdered," she said. "This decision means that sex workers can now pick up the phone, and call the police and report a bad client. This means that we no longer have to be afraid, that we can work with the appropriate authorities."
Moreover, sex workers can set up guilds and associations, health standards, workers' compensation programs, as well as pay income tax. "We want to be good citizens and it's time, now we finally can," said Scott.
Young handled the case mostly free with the help of 20 of his law students. They were up against nearly a dozen government lawyers.
"Personally, I am overjoyed because this is a great David and Goliath story. Sex-trade workers are disenfranchised and disempowered, and no one has listened to them for 30, 40 years," Young said.
Ontario AG considers appeal
The case does not solve the problems related to prostitution, he said.
"That's for your government to take care. Courts just clean up bad laws."
"So what's happened is that there's still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That's not going to change," Young added.
"Here's what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law."
A spokesman for Ontario's attorney general said the office will be reviewing the decision carefully and will consult federal colleagues regarding a potential appeal.
"Ontario intervened and argued that the prostitution provisions of the Criminal Code are constitutional and valid and designed to prevent individuals, and particularly young people, from being drawn into prostitution, to protect our communities from the negative impacts of street prostitution and to ensure that those who control, coerce or abuse prostitutes are held accountable for their actions," said the statement from the Ontario attorney general's office.
The government had argued that striking down the provisions without enacting something else in their place would "pose a danger to the public."
'Shocking and horrific'
Some conservative groups such as REAL Women of Canada, which had intervener status in the case, argued that decriminalizing prostitution may make Canada a haven for human trafficking and that prostitution is harmful to the women involved in it.
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.
Those laws enacted in 1985 were an attempt to deal with the public nuisance created by streetwalkers. They failed to recognize the alternative — allowing women to work more safely indoors — was prohibited.
The ban on bawdy houses is an indictable offence that carries stiffer sanctions, including jail time and potential forfeiture of a woman's home, while the ban on communication for prostitution purposes is usually a summary offence that at most leads to fines.
The provisions prevent sex-trade workers from properly screening clients, hiring security or working in the comfort and safety of their own homes or brothels, Young said.
Young cited statistics behind the "shocking and horrific" stories of women who work the streets, along with research that was not available when the Supreme Court of Canada upheld the communication ban in 1990.