Top court strikes down Canada's 'overly broad' anti-prostitution laws
Published Friday, December 20, 2013 6:06AM EST
Last Updated Friday, December 20, 2013 7:45PM EST
Canada's top court has struck down three key laws concerning prostitution in this country, declaring them unconstitutional, disproportionate and overly broad.
In a 9-0 ruling Friday, the Supreme Court said the laws prohibiting keeping a brothel, living on the avails of prostitution, and communicating in public for purposes of prostitution "do not pass Charter muster." It said they infringe on the rights of prostitutes by depriving them of security of the person.
In a written statement on behalf of the court, Chief Justice Beverley McLachlin said that because prostitution itself is legal in Canada, the three provisions outlined in the ruling made it extremely difficult for prostitutes to safely engage in their work and prevented sex workers from taking steps to protect themselves.
The court found that many of the provisions ended up forcing women out of brothels and into the streets and punished people who worked to protect prostitutes in the sex trade industry including bodyguards and office receptionists.
McLachlin noted that "the regulation of prostitution is a complex and delicate matter," and that it "will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime."
The court's decision will be suspended for one year, meaning the laws will stand as they are until Parliament decides to either amend the laws or set the issue aside.
Justice Minister Peter MacKay said he was "concerned" by the court's decision and that his office would be reviewing the ruling.
"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 statement.
In her decision, McLachlin wrote that given that prostitution itself is legal, the three provisions made it too difficult for prostitutes to safely engage in sex work.
She wrote the laws "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."
The law banning brothels forces prostitutes onto the streets, McLachlin wrote, and the resulting health and safety risks imposed upon street workers is "grossly disproportionate" to the law's objective of preventing public nuisance.
"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes," McLachlin ruled.
As for the laws banning living on the avails of prostitution prohibition, McLachlin wrote that the intention of that law was to target pimps and those who attempt to exploit sex workers. But she said the law punished everyone who works with prostitutes, including those who work to protect them, such as bodyguards, managers and office receptionists.
"In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad," McLachlin wrote.
Lawyers for the federal and Ontario governments argued that if prostitutes want to avoid the inherent risks of prostitution, they could simply choose not to engage in it.
But the court noted that although some prostitutes freely choose to engage in prostitution, many "have no meaningful choice but to do so," because of financial desperation, drug addictions, pressure from pimps, or other reasons.
"Realistically, while (prostitutes) may retain some minimal power of choice -- what the Attorney General of Canada called 'constrained choice' -- these are not people who can be said to be truly 'choosing a risky line of business," McLachlin wrote.
Applicants delighted by decision
Friday's ruling is considered a victory for the three current and former sex workers who brought forth the application to challenge the laws; they appeared both stunned and delighted by the decision.
"I would like to thank the Supreme Court of Canada for declaring sex workers to be persons," former prostitute Valerie Scott, one of the applicants, told reporters gathered in the court's foyer.
"This is the first time in Canadian history that sex workers are truly persons, we are truly citizens of this country. And now we can work in our legal occupation in a legal manner," she said. "This is the best decision I have ever had in my life."
Lawyer Alan Young, who represented the three applicants, said he always believed his team's arguments were "incontrovertible" but he, too, was surprised by the court's unanimity.
"Nine-zero in the Supreme Court of Canada is a little bit surprising to me. I thought in light of the divisive nature of the debate, there would be some dissenting judges," he told reporters.
"But that shows how strong our evidentiary record was and how much we were able to demonstrate that the current laws are irrational and hurting people."
Young added that he didn't expect to see much change at the street level, asserting that prostitution laws are some of the most under-enforced laws in the Criminal Code.