Prostitution: For Parliament to decide

The Supreme Court of Canada has taken a hatchet to Canada's three roundabout regulations on prostitution, giving the Government of Canada one year to come up with alternatives or face a lawless reality.

Chief Justice Beverley McLachlin wrote the ruling for a unanimous court in Canada (Attorney General) v. Bedford, calling the three laws — communicating for the purposes of prostitution, living off the avails of prostitution, and operating a common bawdy-house — unconstitutional under Section 7 of the Charter of Rights and Freedoms and below the principles of fundamental justice.

"The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks," writes McLachlin.

The ruling caught some by surprise, as the Supreme Court had previously decided two of the sex work laws to be constitutional in the 1990 Prostitution Reference, ruling that they did not improperly infringe on the liberty of sex workers. While it recognized the precedent set by that reference, it also underlined that it did not and could not have taken into account evolutions in the constitutional case law that have occurred since then.

"The Court took the Charter and used it in exactly the way that we hoped,” said Katrina Pacey, the litigation director at Pivot Legal Society, which intervened on the case on behalf of those fighting to bring down the laws said,

The Court did suspended the invalidity of the laws for one year from today, leaving room for Parliament, if it so choses, to replace the trio of regulations with legislation that doesn't negatively impact the safety and security of sex workers in Canada. Staying the decision for a year was intended to avoid throwing the legal framework into unmanaged chaos. "Immediate invalidity," the Court decided, "would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it." The Court's decision establishes very stringent limits on any future government regulation of the sex trade.

While the reprieve for the unconstitutional laws is not unprecedented, says Carissima Mathen, an associate professor of law at the University of Ottawa, "there is an essential oddity in saying that, on one hand, they're unconstitutional and, on the other, they're staying on the books." She notes that there would be problems arising from axing outright the provisions on living off the avails of prostitution, as it would immediately make legal exploitative relationships between pimps and sex workers, so the stay makes sense in that regard.

When it comes to operating a common bawdy-house and communicating for the purposes of prostitution, the Court found, the current language is overly broad and grossly disproportionate.

Living off the avails of prostitution, meanwhile, was found to be merely over-broad — with the justices "recognizing that the law is rational in some cases, but that it overreaches in its effect in others." That leaves the door open if the government wants to go back to the drawing board, with the court noting that legislation criminalizing only those who exploit sex workers, namely pimps, would likely be above-board.

The Court did not consider the implication that communicating for the purposes of prostitution could be an infringement of freedom of speech, and therefore unconstitutional under section 2(b) of the Charter, as it was redundant.

The landmark ruling is markedly different that the Ontario Court of Appeal's finding, that the provisions criminalizing communicating for the purposes of prostitution was, in fact, constitutionally-sound. Instead, the Supreme Court found that the provision deprived sex workers of their ability to screen clients and effectively protect themselves.

Alan Young, the chief council for Bedford and her co-respondents, says he was in tears when he read the decision this morning, and was overjoyed and surprised at the result. But he says there's still some uncertainty that will be in place over the next year.

"If the Government of Canada does not enact a new law and get back to the drawing board, it's unclear what will happen. What it will mean is that people can operate indoors. Will that mean some single person establishments of people taking care of themselves, or will it lead to the development larger establishments? Nobody knows. That's one of the reasons why we have to engage the political process."

A statement from Justice Minister Peter MacKay signalled the government's support for filling the legal gap.

"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," says MacKay.

Given that the Court has blocked off many avenues to criminalize sex work, NDP Justice critic Françoise Boivin says that "it's going to be quite the gymnastics if they want to criminalize some of these behaviours."

The Court did, however, leave a tiny crack in its declaration that Section 212(1)(j) of the Criminal Code is unconstitutional.

"The purpose of the living on the avails of prostitution prohibition...is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of those prostitutes, for example, legitimate drivers, managers, or bodyguards," McLachlin writes.

That section is the only element of the laws that the Court considered to have at least a partly positive impact on the lives of sex workers. The justices found, however, that the law was not minimally impairing.

If the government does want to create a legal framework, one option touted is the so-called 'Nordic Model,' whereby criminal code violations would be placed on those who pay for sex, without creating any provisions on how sex workers themselves operate. The victors from today's ruling dismissed that model out of hand.

"I don't want the Nordic Model," Bedford told journalists. "I want a Canadian model."

The various pro-sex work groups and interveners suggested that the ideal solution may be to allow municipalities to devise their own legislation, similar to how strip clubs are regulated across the country.

But given the clear constraints put in place by the Court, Young says there are some certainties.

"As of December 23rd next year, you will be able to move indoors, you will be able to pay someone to offer some assistance to you...and, on the street, you will be able to communicate for the purposes of your business. That will enhance your ability to protect yourself."

The case did not consider any of the laws around procurement — or, pimping. A similar case that's set to come before the lower courts of British Columbia, Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), could strike down some of those procurement laws if it goes forward. Pacey, who is also counsel on that case, says she'll be consulting with her clients to gauge whether there's support to move forward with the case.

If that case moves forward, it stands to further throw Canada's myriad of sex work laws into the lurch.