Gender & Sexuality Law Blog

Nan Hunter has the story here.  The opinion is here.  The case involved a challenge to Canadian law criminalizing 1) keeping a common bawdy house, 2) communicating for the purposes of prostitution, and 3) living on the proceeds of prostitution.  Some highlights of Judge Susan Himel’s opinion:

She starts off with:

This case demonstrates the tension that exists around the moral, social and historical perspectives on the issue of prostitution and the effect of certain criminal law provisions on the constitutional rights of those affected. It highlights the role of the courts and their relationship to the other branches of government.

Prostitution is not illegal in Canada. However, Parliament has seen fit to criminalize most aspects of prostitution. The conclusion I have reached is that three provisions of the Criminal Code that seek to address facets of prostitution (living on the avails of prostitution, keeping a common bawdy-house and communicating in a public place for the purpose of engaging in prostitution) are not in accord with the principles of fundamental justice and must be struck down. 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. I have found that these laws infringe the core values protected by [Section 7 of the Canadian Charter of Rights and Freedoms, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."]

Before concluding that “The effect of the impugned provisions is to force prostitutes to choose between their liberty interest and their own personal security. The provisions place prostitutes at greater risk of experiencing violence. These risks represent a severe deprivation of the applicants’ right to security of the person,” Judge Himel made the following findings of facts:

1. Prostitutes, particularly those who work on the street, are at a high risk of being the victims of physical violence.
2. The risk that a prostitute will experience violence can be reduced in the following ways:
a. Working indoors is generally safer than working on the streets;
b. Working in close proximity to others, including paid security staff, can increase safety;
c. Taking the time to screen clients for intoxication or propensity to violence can increase safety;
d. Having a regular clientele can increase safety;
e. When a prostitute’s client is aware that the sexual acts will occur in a location that is pre-determined, known to others, or monitored in some
way, safety can be increased;
f. The use of drivers, receptionists and bodyguards can increase safety; and
g. Indoor safeguards including closed-circuit television monitoring, call buttons, audio room monitoring; financial negotiations done in advance can increase safety.
3. The bawdy-house provisions can place prostitutes in danger by preventing them from working in-call in a regular indoor location and gaining the safety benefits
of proximity to others, security staff, closed-circuit television and other monitoring.
4. The living on the avails of prostitution provision can make prostitutes more susceptible to violence by preventing them from legally hiring bodyguards or
drivers while working. Without these supports, prostitutes may proceed to unknown locations and be left alone with clients who have the benefit of complete
anonymity with no one nearby to hear and interrupt a violent act, and no one but the prostitute able to identify the aggressor.
5. The communicating provision can increase the vulnerability of street prostitutes by forcing them to forego screening customers at an early and crucial stage of the
transaction.

The South African Constitutional Court had a similar case in 2002, South Africa v. Jordan, in which it refused to see that laws criminalizing sex work either discriminated against sex workers on the basis of sex (since it imposed harsher penalties on those who sold sex than on those who bought sex) or impinged upon a person’s autonomy rights as has Judge Himel.