2010/09/28 | Allison Jones, The Canadian Press
Canada’s prostitution laws are unconstitutional because they’re contributing to the danger faced by sex-trade workers, an Ontario court ruled Tuesday in striking down key provisions of the legislation.
The Ontario Superior Court ruled that laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade “are not in accord with the principles of fundamental justice.”
“These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms,” Justice Susan Himel wrote her in decision.
While the ruling strikes down those key Criminal Code offences — which deal with adult prostitution — it does not affect provisions dealing with people under 18.
Prostitution was not illegal in Canada, but the Ontario Superior Court struck down three provisions that criminalized most aspects of prostitution.
The challenge was brought by dominatrix Terri-Jean Bedford and two other sex-trade workers who said the provisions forced them from the safety of their homes to face violence on the streets.
The government had argued that striking down the provisions without enacting something else in their place would “pose a danger to the public.”
In her ruling, Himel said it now falls to Parliament to “fashion corrective action.”
“It is my view that in the meantime these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the charter violations,” Himel wrote.
“However, I also recognize that a consequence of this decision may be that unlicensed brothels may be operated, and in a way that may not be in the public interest.”
The parties can make submissions seeking an order for a stay of the decision for up to 30 days, but lawyer Alan Young — who brought the challenge —says as it stands today no one can be charged under the anti-prostitution provisions.
The federal government had argued that prostitution is inherently dangerous, no matter where it is practised.
The government also warned that Canada could become a sex tourism destination if prostitution-related activities are decriminalized.
The Christian Legal Fellowship, which was granted intervenor status, argued the provisions reflect society’s views that prostitution “offends the conscience of ordinary Canadians.”
Bedford’s “Bondage Bungalow” north of Toronto was raided by police in 1994 and she was convicted of keeping a common bawdy house in 1998.