In a stunning unanimous decision on Dec. 20, the Supreme Court ruled laws that prohibit soliciting in public, living off the avails of prostitution and keeping a bawdy house violate Charter protections for the security of the person. Prostitution itself was already legal in Canada but the activity around prostitution — pimping, soliciting, keeping a bawdy house —was illegal. This decision potentially removes all those legal barriers in Canada.
The hight court, however, stayed its ruling for one year to allow Parliament to draft Charter-compliant legislation. The stay was granted because “moving from a situation where it is entirely unregulated would be a matter of great concern to many Canadians,” the court said in its written decision.
“If the laws aren’t addressed . . . if Canada is to become a sex-tourism destination, I think people should be prepared for a sex trade worker appearing at careers day at your local high school,” warned Catholic Civil Rights League president Phil Horgan.
Justice Minister Peter MacKay said he was “concerned” by the ruling and that the government would explore all its options “to ensure the criminal law continues to address the significant harms that flow from prostitution.”
“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 other vulnerable persons, and to address the negative effects prostitution has on communities,” MacKay said in a statement.
“This is not the decision we wanted and not what the majority of Canadians would want,” said Catholic Civil Rights League executive director Joanne McGarry. The League intervened in the case jointly with REAL Women of Canada and the Christian Legal Fellowship.
“What we hope to see come out of this is a new Charter-compliant law that will protect the victims of prostitution and reduce the level of prostitution,” she said. “This is an activity that degrades all participants, especially women.”
The prostitution case involved B, L and S, “current or former prostitutes” who argued the prostitution laws infringed their Section 7 rights under the Charter. They won at the Ontario Superior Court level, and achieved a partial victory at the Ontario Court of Appeal.
“These appeals and the cross-appeal are not about whether prostitution should be legal or not,” wrote Chief Justice Beverley McLachlin in the unanimous decision. “They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude they do not.”
McLachlin wrote it made no difference whether the violence of pimps or johns cause the prostitutes’ “most immediate source of harms.” She found the harms to prostitutes of bawdy house provisions are “grossly disproportionate” to its purpose to deter “community disruption.” The effect of the bawdy house provision is to limit prostitution to the streets or to out-calls, where the prostitute goes to meet the client at an agreed location, she wrote. Allowing prostitutes to work indoors, with security systems, bodyguards and a regular clientele would increase their safety, she noted.
Though the attorneys general of Canada and Ontario argued the objectives of the living of the avails provision was to “target the commercialization of prostitution, and to promote the values of dignity and equality,” McLachlin rejected their argument, noting it “is not supported by the legislative record.”
Though McGarry acknowledges getting rid of prostitution altogether might be impossible, she called the Nordic model, where the buyers of sex are sanctioned, attractive. Horgan said this model might run into other constitutional problems concerning associational rights for that small proportion of individuals who do engage in selling sex by choice. Any law must address the exploitive nature of prostitution, he said.
The League’s intervention concerned the shared morality of Canadians as one of the purposes of the laws. “No one wants their kids to go into this,” McGarry said. “It is not an activity that we should be encouraging.”
REAL Women of Canada national vice president Gwen Landolt said the “Supreme Court tossed out the window the fundamental legal principle of stare decisis, which means that the court is bound by its previous decisions.”
“The Supreme Court of Canada certainly is no longer a court of last resort but rather is a court of interim opinion,” she said.