Prostitution laws struck down by Ontario court

[CanadaSue]

Fascinating court case - many fundamental parts of Ontario's anti-prostitution laws were struck down as unconstitutional. There's a 30 day stay on enacting the judgement as the judge has essentially told our government, if they want prostitution toremain illegal, they need to find a way to rewrite the law that's Constitutionally solid:

http://www.cbc.ca/canada/story/2010/...on-law028.html

[Ought Six]

This could open up a whole new tourism industry for Canada. We will have to vastly expand our border crossing facilities to handle the increased traffic. Nevada will not be amused.

[Twoolf]

I've never understood anti prostitution laws. Its kind of like prohibition, and the "war on druigs". Make all the laws you want, its still going to happen. Might as well make it legal, regulate and tax it.

[Brihard]

I'm following this one very closely. I'm eager to see which specific criminal code provisions were struck down, and on which Charter grounds.

One of my academic interests is Canadian rights law and Charter decisions. This should be a good one.

[Ought Six]

I am quite sure your interest is entirely academic.

[Brihard]

Originally Posted by Ought Six

I am quite sure your interest is entirely academic.

Are you kidding? I still have most of my pay from Afghanistan. This is the entrepreneurial opportunity of a lifetime!

[CanadaSue]

You beat me to it, Ought...

What I was thinking was that this is going to give a bunch of landlords fits. Every building has prostitutes & it's not long before you find out who they are. Because a specific lease provision is that you cannot engage in illegal activities in your unit, it's a 'hole card' for landlords to get rid of problem tenants. That hole card may vanish in 30 days.

It's a very good point that hookers can now call cops on a bad client - that will keep EVERYBODY safer.

[Brihard]

Originally Posted by CanadaSue

You beat me to it, Ought...

What I was thinking was that this is going to give a bunch of landlords fits. Every building has prostitutes & it's not long before you find out who they are. Because a specific lease provision is that you cannot engage in illegal activities in your unit, it's a 'hole card' for landlords to get rid of problem tenants. That hole card may vanish in 30 days.

It's a very good point that hookers can now call cops on a bad client - that will keep EVERYBODY safer.

I suspect the provinces will pass regulations requiring licensing like any other business. Such licenses can easily be denied to residential properties...

[Brihard]

OK, found the decision. This eliminates one offence and two provisions of offences from our criminal code. Note that the actual act of prostitution was not illegal; merely everything facilitating it. What this appears to do is essentially legalize brothels and solicitation.

Section 210- 'Keeping a common bawdy-house'. Basically any piece of property used for the purpose of prostitution. I.e., a brothel.
Section 212(1)(j)- Living on the avails of another person engaged in prostitution. This logically follows from striking down the provision that prohibits operating a brothel.
Section 213(1)(c)- Communicating for the purpose of prostitution; i.e., soliciting.

All three were struck down as unconstitutional under section 7 of the Charter, the right to life, liberty and security of the person. It was held (correctly, in my belief) that these offences in fact endanger prostitutes by forcing them to ply their trade outside of the realm of normal lawful enterprise.

Further, 213(1)(c) (solicitation) was also struck down under 2(b) of the Charter, the right to freedom of belief, thought, opinion, and expression.



A very correct decision, in my opinion, and one I'm happy to see finally happen. I predict that mechanisms will be put in place in a relatively expeditious manner to allow the provinces to impose regulations governing how such businesses shall operate.

This is my initial read on this after looking at it for ten or fifteen minutes. If I come up with anything else I'll give it mention.

As it stands, this judgement was delivered in the Ontario Superior Court of Justice, our provincial court for criminal code cases in most indictable offences. I predict the crown will be appealing this to the Ontario Court of Appeal, which will likely find in favour of the existing decision. It may go to the Supreme Court - we have a conservative government in power right now - but I don't see it as likely that this will be overturned at any level.

[Ought Six]

CS:

"What I was thinking was that this is going to give a bunch of landlords fits. Every building has prostitutes & it's not long before you find out who they are. Because a specific lease provision is that you cannot engage in illegal activities in your unit, it's a 'hole card' for landlords to get rid of problem tenants. That hole card may vanish in 30 days."

Residential landlords surely have the right to apply lease restrictions on what type of businesses may be operated out of apartment units; correct?

[CanadaSue]

Our leases prohibit operating most businesses out of apartments so they can still get them out. When landlords take such cases before the landlord/tenant board, they had an easier time with the prostitution aspect - they could punt out problem tenants faster.

They can still do it but it will be slower now.

Brian, about that business opportunity... ahem. You need a front office person, (or back office if you need eye candy out front), to moniter all aspects of such an operation, screen your staff, book appointments, make sure the staff is healthy, etc.

And somebody needs to keep the passionflowers watered.

[Ought Six]

Seeing a family-run business is always so heartwarming.

[rb.]

If this is actually going to be legalized, and prostitutes (both male and female) will be allowed to legally go about their business, they'd better structure it right. If my country, or province, is going to allow prostitution, I don't want to see druggies on the street soliciting, condoms in alleys, and scumbag pimps beating the shit out of them later. License it, tax it, and regulate the shit out of it. Make them have on-site security they PAY, not some guy that's using them to make money. Regular STD testing, certificates on the wall for proof. All that stuff. If some woman needs to give of her most intimate parts to make a living, it damned well better do her more good than harm. Not so sure about men that would get into it... And make it illegal, of course, for anyone under 18, male or female...or even 21.

[Brihard]

Originally Posted by rb.

If this is actually going to be legalized, and prostitutes (both male and female) will be allowed to legally go about their business, they'd better structure it right. If my country, or province, is going to allow prostitution, I don't want to see druggies on the street soliciting, condoms in alleys, and scumbag pimps beating the shit out of them later. License it, tax it, and regulate the shit out of it. Make them have on-site security they PAY, not some guy that's using them to make money. Regular STD testing, certificates on the wall for proof. All that stuff. If some woman needs to give of her most intimate parts to make a living, it damned well better do her more good than harm. Not so sure about men that would get into it... And make it illegal, of course, for anyone under 18, male or female...or even 21.

It remains illegal for minors, which is pegged at 18.

I suspect we'll see a provincially regulated system develop similar to that existing in many other jurisdictions.

The specific reasoning for this (with the exception of the 2(b) Charter defeat of the 'solicitation' subsection) is that this is an effort to make things safer for prostitutes.

At the end of the day, our desire not to see 'ew, icky' does not trump their right to security of the person. This is a very reasonable decision that accepts reality and is seeking to minimize harm.



Mom- one thing I just noticed in your original post on this, 'Ontario's laws on prostitution'. That's not the case. These are sections of the Criminal Code, which is federal. The verdict was returned in the Ontario Superior Court of Justice, as most criminal matters are tried in provincially administered courts. The precedent set by this shall stand nationwide though.

[CanadaSue]

Oh really? Okay - I missed that - got lazy & didn't check the specific legislation. If this applies nationally; wow!

[Brihard]

Originally Posted by CanadaSue

Oh really? Okay - I missed that - got lazy & didn't check the specific legislation. If this applies nationally; wow!

Yup. Criminal law is a power reserved exclusively for the federal level. That's how some of the pre-Charter discrimination cases against Jehova's Witnesses and communists in Quebec under Bourassa were resolved; the various provincial or municipal laws were found to be criminal law in their effect, and consequently outside the constitutional jurisdiction of the provincial government.

[Arianwen]

I hope this means less women dead in a ditch or fed to pigs...

[rb.]

...or dumped just outside the city limits of Winnipeg.

Bri...fed code, but can it be challenged in EACH province's courts?

[Brihard]

Originally Posted by rb.

...or dumped just outside the city limits of Winnipeg.

Bri...fed code, but can it be challenged in EACH province's courts?

rb- that's how our system works. Note that the provincial superior courts in all provinces are analogous to each other and fulfil the same roles. While they will also rule on the laws of their respective provinces, they are also the court responsible for trying criminal cases.

At the federal level the only court that would be in line to hear this appeal is the Supreme Court. Obviously that would put a huge burden on the SCC, including many cases that simply don't merit attention at that level. We have the provincial Superior Courts of Justice and the provincial Courts of Appeal to fill that role.

There's nothing unusual or wrong about the arrangement of our court system... It's a logical breakdown to put the appropriate courts in the appropriate places, and to avoid duplication of effort, jurisdiction or mandate.



Summary criminal offences are tried in the Provincial Courts, indictable ones in the provincial Superior Courts. Superior courts can also review decisions form the 'inferior' provincial courts and are the first venue of appeal for those courts. Anything appealed from provincial Superior Court goes to the provincial court of appeal (at this point the issues discussed are not the facts of the case, but the application of law) and then anything appealed form that level may go to the Supreme Court if they decide to hear it.

Across Canada, a decision rendered in one level of court on a law that applies nationally is binding in similar cases across all courts of that level nationally. It's typical application of common law.

[CanadaSue]

That's the intent - a higher level of safety for the sex trade workers.

Not to mention, it puts a police eye on customers who may be dangerous to others & possibly involved in other crimes they may want to take off the streets.

Ontario is apparently planning to appeal.

[Arianwen]

Well, fudge Ontario then. > jerkwads. Legalizing it means, less STD spreading, whores doing their business indoors instead of on street corners, less murders, more tax dollar$ blah blah blah. I think it's only illegal because it's primarily WOMEN selling themselves, it's one of the few things we have power over and the sexist, fat, old white men can't STAND that. How dare women take charge of their own sexuality! We should be barefoot, pregnant and making them a sandwich.

Same deal why they're always trying to turn back the clock on the right to choose. Grumble, snarl etc.

Hell, it's the same kind of people trying to stop midwifery/home births etc down here. How dare women take charge of their own bodies...

*grumble* sexism. *grumble*

[rb.]

Your thoughts don't explain how WOMEN are against prostitution, abortion, etc., Ari.

The ONLY reason I'm against it is that I believe the VAST majority of sex trade workers are in it out of desperation, and not because it's the career choice of a well-rounded, healthy person. I really have never heard a young woman say that when she grows up she wants to be a hooker, high-priced or otherwise.

Abortion? That's a whole 'nuther ball of wax, and don't be surprised if you come to feel a bit differently about it since you are now pregnant.

I don't WANT to see prostitution in our society, but clearly there is a need for some. So let's minimize the damage. Make it respectable and safe.

[Arianwen]

Originally Posted by rb.

Your thoughts don't explain how WOMEN are against prostitution, abortion, etc., Ari.

The ONLY reason I'm against it is that I believe the VAST majority of sex trade workers are in it out of desperation, and not because it's the career choice of a well-rounded, healthy person. I really have never heard a young woman say that when she grows up she wants to be a hooker, high-priced or otherwise.

Abortion? That's a whole 'nuther ball of wax, and don't be surprised if you come to feel a bit differently about it since you are now pregnant.

I don't WANT to see prostitution in our society, but clearly there is a need for some. So let's minimize the damage. Make it respectable and safe.

Women brainwashed by rich, white, fat old republican men are opposed to women's rights, in my experience. Not every woman would HAVE an abortion, but those with any sense realize it is unethical to legislate women from having the right to choose. Being pregnant has not changed my stance on the right to choose one iota. I will protest holding a coat hanger up high with my big ole belly out in front. I'm *violently* opposed to going back to the "Bad Old Days" of back alley botched abortions etc. Fug that noise.

I know someone who is on medication that is known to cause birth defects, was raped by (guess what, a pastor) got pregnant, went to one of those "crisis pregnancy centres" they lied and said she wasn't pregnant, it wasn't until she was well into the 2nd trimester she found out the truth - the fetus had lethal defects (brain defects, spina bifida, bunch of other stuff) and she was lucky enough to find a Doctor that would give her an abortion - where she lives in the States it's not very easy. Imagine what would happen to someone like her if they succeed in turning back the clock on women's rights? Disgusting.

Probably a lot of whores are driven to that line of work via drug addiction etc, but I'd say not all of them, it IS the oldest profession on earth. By having prostitution illegal, the women providing that service risk getting lengthy criminal records/prison time and cut into little pieces and dead-i-fied, not to mention spreading HIV/Hep C/God knows what.

[Brihard]

Originally Posted by Arianwen

Probably a lot of whores are driven to that line of work via drug addiction etc, but I'd say not all of them, it IS the oldest profession on earth. By having prostitution illegal, the women providing that service risk getting lengthy criminal records/prison time and cut into little pieces and dead-i-fied, not to mention spreading HIV/Hep C/God knows what.

According to a presentation our class was given by the Ottawa street crimes unit, approximately 90% or more of prostitution is done to support someone's drug habit.

[rb.]

Originally Posted by Arianwen

Women brainwashed by rich, white, fat old republican men are opposed to women's rights, in my experience.

You are doing exactly what you claim the "rich, white, fat old republican (??) men" are doing...discounting women. And when's the last time you met a republican Canadian? Just because someone's opinion does not match your own does not mean someone has brainwashed them.