How the court's views on prostitution have evolved

Prostitution is, and has been for some time, legal in Canada. What's been illegal are a variety of activities around it, including keeping a common bawdy house, living off the avails and communicating for the purpose of prostitution.

All five judges of the Ontario Court of Appeal panel held that the laws surrounding the first two activities are unconstitutional, as written. The judges split 3-2 on the third. The majority held that the communication offence still passes scrutiny under the Charter of Rights. The two judges in dissent would have struck it down as well.

The high-profile case revolved around the security of prostitutes going about their business. The laws prohibiting keeping a common bawdy house and communication in public for the purposes of prostitution were upheld by the Supreme Court of Canada in 1990.

But the security of prostitutes did not figure prominently in that ruling. And this week's case offered the chance to revisit these laws in that light.

Pickton's long shadow

You only have to mention Robert William Pickton, the B.C. serial killer who preyed on Vancouver prostitutes, to underscore the problems with Canada's prostitution laws in the years since 1990.

But while the Pickton case was barely mentioned in Monday's ruling, it was obvious to the court that this is a dangerous profession, made more dangerous by laws surrounding the activity.

When the ban on communication in public was introduced in 1985, the bawdy house prohibitions were left as is. Prostitutes faced an inability to work legally indoors or on the streets, creating, in the words of Justice James MacPherson, an "almost perfect storm of danger."

Today's judgments analyzed this set of laws both in terms of the Charter's legal guarantees (in section 7) of "life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice," as well as the free expression guarantee in section 2(b).

In this case, when it came to free expression, the majority in the Court of Appeal felt bound by the Supreme Court of Canada's earlier ruling in 1990 and declined to consider that section, leaving it to the Supreme Court to deal with that issue itself if the case reaches there.

Section 7, then, became the focus of this ruling.

Common bawdy house

In that context, all the judges agreed that the current prostitution laws deprived prostitutes of the right to liberty (given the potential jail time), and the right to security of the person (given the proven harm to prostitutes from the laws as written).

The judges then considered whether these infringements on the rights of sex workers were outside the bounds of what are called the principles of fundamental justice: that is, was the impact of these laws arbitrary, overbroad, or grossly disproportionate to the government's objectives in passing the legislation? These concepts evolved considerably in the 20 years since the Supreme Court's 1990 ruling.

That analysis turned out to be the litmus test for their constitutionality.

The law against keeping a common bawdy house was not found to be arbitrary, but it was determined by the court to be overbroad and grossly disproportionate. It prohibited a prostitute working discreetly from home, in safe and secure conditions, which the initial judge had found to be the safest way to sell sex.

The appeal court approved the lower court's recommendation to remove the word "prostitution" from the definition of common bawdy house, and leave the ban against bawdy houses in place so that the law continues to apply to acts of indecency.

The appeal court gave Parliament 12 months to rewrite the law to be compliant with the Charter; or leave the law as the court rewrote it.

'Exploitation'

Similarly, the law against living off the avails of prostitution was held not to be arbitrary, but it was deemed overbroad and grossly disproportionate to the government's objectives.

That law criminalized non-exploitative commercial relationships between prostitutes and others, including with those who could enhance their safety, such as receptionists, drivers and bodyguards.

The court's solution: read into the ban words that make it clear that the offence is living off the avails of another's prostitution "in circumstances of exploitation."

That meant the law would continue to ban exploitation where there is, for example,  dependency (on drugs, or on the basis of youth); where there would be no legal or moral claim to the earnings; or where the earnings taken are way out of proportion to the services rendered. That rewrite by the court takes effect in 30 days.

Finally, the majority held that the law against communication in public for the purposes of prostitution was neither arbitrary, overbroad nor grossly disproportionate.

From the community perspective, this was not just a question of controlling a public nuisance. In addition to noise and traffic issues, the concerns are with children witnessing acts of prostitution, harassment of residents, drug use, unsanitary acts, violence, and the unwelcome solicitation of women and children by customers, as well as of male residents by prostitutes.

Street solicitation is associated with serious criminal conduct, including drug possession, drug trafficking, public intoxication and organized crime, the majority of the justices said.

Communicating

The majority also suggested that now that they had permitted prostitution indoors, that the need for street prostitution would diminish.

However, the minority judges felt the balance on this issue was wrong and that the evidence suggested that 10-20 per cent of prostitutes would continue to be on the street, even with the bawdy house provisions struck down.

What's more, they argued, those who engage in street activity are among the most vulnerable and require the greatest legal protection, which ought to include changing the laws about communication.

Many prostitutes, the minority decision said, "will stay on the streets because of coercion, insufficient resources, or lack of support networks." In addition, the law that prevents them from communicating with their clients to assess potential danger "will continue to drive street prostitutes to isolated, and potentially very dangerous, locations.

"All this implicates street prostitutes' personal safety and, in far too many cases, the fragile line between life and death."

It remains to be seen how this will all play out. If the government does not seek leave to appeal to the Supreme Court of Canada, the applicants have said that they may not try to take this case there themselves, which means this decision will remain binding in Ontario and have an influence across the country.

If the case is appealed, however, all issues will likely be up once again for consideration.