Ontario Appeal Court strikes down ban on brothels

Ontario's Court of Appeal has ruled that sex workers should be able to legally take their trade indoors and pay staff to support them.

The court released a decision Monday on an appeal of Superior Court Judge Susan G. Himel's high-profile ruling that three provisions of the Criminal Code pertaining to prostitution should be struck down on the grounds that they are unconstitutional.

The Ontario appeal court agreed with two-thirds of Himel's ruling, namely that the provisions prohibiting common bawdy-houses and living off the avails of prostitution, are both unconstitutional in their current form.

But the court disagreed that the communicating provision must be struck down, meaning that it "remains in full force" and the existing ban on soliciting will continue.

Both Justice Minister Rob Nicholson and Ontario Attorney General John Gerretsen indicated that their respective departments would review the decision before deciding how to proceed.

"As the Prime Minister has said, prostitution is bad for society and harmful to communities, women and vulnerable persons," Nicholson said in a statement released by his office.

"We are reviewing the decision and our legal options."

The Ontario court said it will strike the word "prostitution" from the definition of "common bawdy-house," as it applies to Section 210 of the Criminal Code, which otherwise prevents prostitutes from offering services out of fixed indoor locations such as brothels or their homes.

However, the court said the bawdy-house provisions would not be declared invalid for 12 months, so that Parliament can have a chance to draft Charter-compliant provisions to replace them, if it chooses to do so.

Concern for sex workers still on the street

Valerie Scott of Sex Professionals of Canada said most sex workers in the industry today are already operating indoors.

While Scott said she welcomed the court’s ruling, she expressed concern for sex workers who are still out on the street.

"I do worry about my street colleagues. What are they going to do?" Scott said Monday at a news conference in Toronto.

"We have to figure out something to make these women and men safe."

Terri-Jean Bedford, a dominatrix and former prostitute, said sex workers are much better off working indoors where they do not face the same risks.

"When you are out on the street, the laws are horrible … and they move people into the shadows," Bedford told CBC News Network Monday.

Ability to hire help

The court also said that the prohibition of living off the avails of prostitution – as spelled out in Section 212(1)(j) of the Criminal Code – should pertain only to those who do so "in circumstances of exploitation," and will be amended to reflect that.

The changes to the "living-off-the-avails" provision will not come into effect for 30 days.

Scott said that allowing women to work with others and hire staff is another way of making sex work safer.

"When you have people around, generally, you don't see as much violence."

In the preamble to its judgment, the court said prostitution is legal in Canada, with "no law that prohibits a person from selling sex, and no law that prohibits another from buying it."

While the court acknowledged that "prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety," it said the questions before it were about whether the laws being challenged were unconstitutional or not.

Looking forward

Lawyer Alan Young, who represented three women who brought forward the application to have the provisions declared unconstitutional, said the appeal court’s decision had ushered in a "new era" for sex workers.

"I am thrilled that the Court of Appeal has done the right thing," Young told reporters after the court released its judgment Monday.

"They may not have gone as far as the Superior Court judge, but when you actually look at the result, they’ve done the right thing in terms of modifying the law so that sex workers will not face the same risks they face on a daily basis."

Nikki Thomas, the executive director of Sex Professionals of Canada, said sex workers have long been living in a legal limbo in which prostitution is legal but many particular modes of operation are not.

Thomas said now is the time for sex workers to make their voices heard, while their issues are on the agenda.

"We cannot wait for the Supreme Court [of Canada] to rule before we all of a sudden decide that this is something that needs to be addressed," Thomas said.

"The public overwhelmingly supports legal reform. Nobody thinks that the laws on the books are good laws and the absence of good laws is not an excuse to keep those bad laws on the books."