Prostitution Canada Law Appeal: Ontario Top Court Strikes Down Brothel Law
UPDATED: Ontario's top court has struck down the ban on brothels.
The court says the ban puts prostitutes in danger and they should be allowed to work safely indoors.
However, it has given the government one year to rewrite the law if it chooses to.
At the same time, the Appeal Court says concerns about the nuisance created by street prostitution is real.
So it has upheld the ban on soliciting for the purposes of selling sex.
When it comes to living on the avails of prostitution, the court says the law can be reworded to specifically exclude the exploitation of prostitutes.
MORE TO COME
TORONTO - A ruling that could effectively end prostitution-related prosecutions in Canada comes down Monday as Ontario's top court weighs whether current laws are constitutional.
Essentially, the Appeal Court will decide whether three laws put sex-trade workers in danger by banning brothels, soliciting, and living off the avails of the sex trade.
"It's a matter of life and death," said Valerie Scott, one of three women involved in the case.
"In what other legal occupation is a worker not permitted by law to take any security measures?"
In a comprehensive judgment in September 2010, Ontario Superior Court Justice Susan Himel ruled the laws were fundamentally unjust by making life more dangerous for sex-trade workers. Prostitution itself was not illegal in Canada, though many of the key activities were under the three laws that Himel struck down.
The provisions, Himel said, put prostitutes at risk by preventing them from working indoors, screening clients or hiring bodyguards.
"These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person," Himel wrote.
The government appealed, arguing in part last June that the laws are necessary to allow police to control street prostitution and to protect vulnerable women from harm at the hands of pimps. It also maintained that prostitutes make an economic choice they know is dangerous, and therefore have no constitutional protection for that decision.
Even Prime Minister Stephen Harper has weighed in.
"We believe that the prostitution trade is bad for society," Harper said after Himel's decision.
"That's a strong view held by our government (and), I think, by most Canadians."
Critics of the laws argued that scrapping them had the potential to save women from predators like serial killer Robert Pickton, convicted of murdering six Vancouver prostitutes. They also accused those who back the restrictions of fear-mongering.
"The prohibitionists are throwing kids at the wall, they're throwing white slavery at the wall, and the pimps with children in tow on their front lawn, they're throwing that at the wall, just hoping that something will stick," Scott said.
The Christian Legal Fellowship, which intervened in the appeal, argued the provisions reflected society's views that prostitution "offends the conscience of ordinary Canadians."
Terri-Jean Bedford, a dominatrix involved in the legal challenge, called Monday's decision "extremely" important.
"These laws discriminate against women," Bedford said. "If the decision is in our favour, they can take control over their bodies."
The Appeal Court suspended Himel's ruling pending its own decision, which will be binding in Ontario.
However, if the five-justice panel sides with the lower court, it would have a strong chilling effect on prosecutions elsewhere in the county, pending any decision by the Supreme Court of Canada.
While the case appears destined for Canada's highest court, Alan Young, the lawyer who launched the challenge on behalf of the women, said the government should have reviewed the laws, not engaged in "knee-jerk" appeals.
"It's a disservice to women in the sex trade that the government takes such a cavalier position," Young said.
The case has "crystallized" the issues around the sex-trade, Young said, and would spark a broader political debate.
"It's the beginning of a dialogue between Canadians, the courts and Parliament as to what we should do about something that we've unthinkingly just prohibited for the last 100 years without really evaluating what we're doing," Young said.
The Appeal Court ruling is to be released at 11 a.m.
15 Things Critics Fear In The Tory Crime Bill
Opposition parties, professionals working within the corrections and justice systems, the Canadian Bar Association and various other interest groups have raised wide-ranging concerns about the <a href="http://www.huffingtonpost.ca/news/omnibus-crime-bill" target="_hplink">omnibus crime bill</a>. Here is an overview of some of their objections. (CP/Alamy)
15. Harsher Sentences For Young Offenders
Changes to the Youth Criminal Justice Act will impose tougher sentences for violent and repeat young offenders, make it easier to keep such offenders in custody prior to trial and expand the definition of what is considered a "violent offence" to include "creating a substantial likelihood of causing bodily harm" rather than just causing, attempting to cause or threatening to cause bodily harm. The new legislation will also require the Crown to consider adult sentences for offenders convicted of "serious violent offences" and require judges to consider lifting the publication ban on names of offenders convicted of "violent offences" even when they have been given youth sentences. Some of the concerns around these provisions raised by some of the professionals who work with young offenders include: (Alamy)
14. Young Offenders - Naming Names
The publication of names of some young offenders will unjustly stigmatize them for life. Quebec has asked that provinces be allowed to opt out of this provision. (Getty)
13. Young Offenders - Stiffer Sentences
Stiffer, longer sentences will turn young offenders into hardened criminals and undermine any potential for rehabilitation. (Alamy)
12. Young Offenders - Minorities Take The Brunt
As with other parts of the crime bill, critics says harsher sentencing rules and increased emphasis on incarceration will <a href="http://www.huffingtonpost.ca/2012/02/20/bill-c-10-omnibus-crime_n_1289536.html?ref=omnibus-crime-bill" target="_hplink">disproportionately affect aboriginal</a> and black Canadians, who are already over-represented in the criminal justice system. (Alamy)
11. Young Offenders - Forget Rehabilitation
The changes shift the emphasis of the Act from rehabilitation to "protection of society," which critics say will put the focus on punishing young offenders rather than steering them away from a life of crime. <a href="http://www.huffingtonpost.ca/2011/11/22/crime-bill-quebec-canada_n_1107717.html?ref=omnibus-crime-bill" target="_hplink">Quebec, in particular, which prides itself on the success of the rehabilitative aspects of its youth justice system, has argued for stronger language prioritizing rehabilitation</a>. (Alamy)
10. Fewer Conditional Sentences
The legislation will eliminate conditional sentences, those served in the community or under house arrest, for a range of crimes, including sexual assault, manslaughter, arson, drug trafficking, kidnapping and fraud or theft over $5,000. It will also eliminate double credit for time already served. Critics say these changes will: (Getty)
9. Fewer Conditional Sentences - Spike Costs
Cost the federal and provincial justice and corrections systems millions of additional dollars a year. The parliamentary budget officer, <a href="http://www.huffingtonpost.ca/2012/02/28/omnibus-crime-bill-costs-conditional-sentences_n_1306528.html?ref=omnibus-crime-bill" target="_hplink">Kevin Page, has estimated that the average cost per offender will rise from approximately $2,600 to $41,000</a> as a consequence of the elimination of conditional sentences. (Alamy)
8. Fewer Conditional Sentences - More Trials And Hearings
- Lead to more trials as those accused of crimes will be less likely to plead guilty if they know there is no chance they will get a conditional sentence and will be more likely to take their chances on a trial. Some have predicted this will lead to greater backlogs in an already backlogged court system. - Result in more parole hearings. Page's analysis predicted that with the increase in the number of incarcerations, there will be more offenders coming up for parole, which will increase costs for federal and provincial parole review boards. A single review by the Parole Board of Canada costs an estimated $4,289, Page estimated. (Alamy)
7. Mandatory Minimums
<a href="http://www.huffingtonpost.ca/2012/02/22/bill-c-10-drugs-mandatory-minimums-omnibus_n_1292894.html?ref=omnibus-crime-bill" target="_hplink">By far the most criticized aspect of the bill is the introduction of mandatory jail sentences for certain crimes, including drug trafficking, sex crimes, child exploitation and some violent offences</a>. Opponents of the measures have argued that this type of sentencing has been tried in other jurisdictions, most notably in the U.S., and has created more problems than it has solved. Critics say that coupled with other changes in the bill, such as increases in the maximum sentences handed down to some drug offenders and sexual predators and elimination of conditional sentences in some cases, mandatory minimums will burden Canada's prison and court systems in ways that are unfeasible, untenable and have little benefit. In particular, they argue that mandatory minimum sentences will: (Jupiter Images)
6. Mandatory Minimums - Higher Costs
Increase the costs of prosecuting and incarcerating offenders and leave fewer funds for rehabilitation programs. (Alamy)
5. Mandatory Minimums - Overcrowding
Lead to overcrowding in prisons. (Alamy)
4. Mandatory Minimums - Make Judges Less Powerful
- Remove judges' discretion to tailor sentences to the specifics of a particular case and offender and force them to apply blanket, one-size-fits-all sentences regardless of circumstances - Limit the use of alternate sentencing measures of the type currently applied to aboriginal offenders. (Alamy)
3. Mandatory Minimums - Over-Punish Drug Offenders
<a href="http://www.huffingtonpost.ca/2012/03/02/omnibus-crime-bill-pierre-claude-nolin_n_1316481.html?ref=omnibus-crime-bill" target="_hplink">Disproportionately punish small-time drug offenders and have limited effect on the drug producers, organized crime bosses and serious drug traffickers</a> the government says it wants to target. (Alamy)
2. Mandatory Minimums - What's The Point?
Have little rehabilitative effect on offenders and rather leave them more, not less, likely to re-offend. <a href="http://www.huffingtonpost.ca/2011/11/27/tough-on-crime-conservatives-doubt-tough-sentences_n_1115012.html?ref=omnibus-crime-bill">Critics point to numerous studies showing harsher incarceration laws do not have a deterrent effect on criminals or lower crime rates</a>. (Alamy)
1. Mandatory Minimums - What Charter?
Violate provisions of the Charter of Rights and Freedoms and open up the government to legal challenges on grounds that the sentencing rules violate certain rights that offenders have under the Charter, such as the right to liberty, the right not to be subjected to cruel and unusual punishment and the right to equal protection and benefit of the law. (Alamy)