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“Prostitutes are finally free!” (from the entanglements of the law) … Or are they?

By Don Hutchinson

Lawyer Alan Young sat down in a crowded media theatre and engaged in his version of yelling ‘fire!’ Much of the media present joined in the cry and the resulting confusion on blogs, newspaper sites and the 6 o’clock news left the nation looking for smoke. At least that’s the way I perceive the majority of the coverage that has been given to the Ontario Court of Appeal’s decision in Canada (Attorney General) v. Bedford, 2012 ONCA 186 (“Bedford”).

I’m not faulting Mr. Young for his remarks at the media conference, as he did an excellent job of representing his clients’ interests – that would be Ms. Bedford, Ms. Lebovitch, Ms. Scott and no one else. Neither he nor his clients represent the vast majority of prostituted people in this country, but rather the rare few who might have the capacity to hire a receptionist, driver or security staff as part of their corporate business operations. Mr. Young’s clients were by his side, as they have been throughout: the dominatrix, conveying the sense that the recipient of payment is in control of the process; the woman in suit and pearls, to let us know this is a business; and, the executive director of Sex Professionals of Canada – an impressive title for the head of an activist group of undetermined membership or representation that was established to campaign for the decriminalization of prostitution in Canada through this lawsuit.

But, listening later to the current and formerly prostituted women who were not invited to the big celebration or to the early release review of the decision I heard a different story. Perhaps, might I suggest, a more accurate or true story than Mr. Young or his clients would want Canadians to hear. And, a story more in line with the research undertaken by our office that has resulted in the EFC seeking change to the laws on prostitution through Parliament rather than the courts.

“Upwards of 90% of prostituted women would get out if they could,” is what I’m told by our policy analyst, Julia Beazley, the formerly prostituted women she partners with and the studies done in Canada and other countries (see Selling Ourselves: Prostitution in Canada, Where are we Headed? and Seeking Justice, Rescuing the Enslaved: Recommendations for a National Strategy to Combat Human Trafficking). These networks of women Julia links with and learns from – significant numbers of women from coast to coast to coast, I might add – are the ones who have established organizations to help the over 90% find ways out. And these women are the ones who are advocating for better protection for those still trapped in exploitation, better laws that will target their exploiters, and better support for those seeking to exit.

So, what did the Ontario Court of Appeal actually decide?

1. The court gave the federal government twelve months to reform the Criminal Code (the “Code”) provision against prostitutes operating out of brothels, massage parlours and other forms of common bawdy houses; which does nothing to protect the rank and file exploited women, men and children working on the street. If the law is not changed in that time, or the decision left unappealed to the Supreme Court of Canada (SCC), then prostitution by means of operating from a “common bawdy house,” i.e. any home, apartment, hotel, storefront, etc will be legal in Ontario (the Ontario Court of Appeal only has jurisdiction in Ontario).

2. The court upheld the Code provision that prohibits communicating for the purposes of prostitution; i.e. you can buy and you can sell but you can’t advertise or negotiate a price.

3. And, the court redrafted the living on the avails (proceeds) of prostitution section of the Code so that it will only apply to those doing so in an exploitive way – with a 30 day hold on implementation of the change, again allowing for an appeal to the SCC; which would accommodate the rare few with the capacity to structure a sex-for-sale business with support staff.

All of this was couched in the refrain peppered throughout the decision that, “In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it.” This repeated phrase sends a clear message to Parliament that if prostitution is to be illegal in Canada, then Parliament will have to declare exactly what it is that breaks the law.

The Court of Appeal’s panel of five judges was also a little bit mischievous, given that there is a strong likelihood of this case being heard by the Supreme Court of Canada. Each component of the decision poses a scenario for analysis by the SCC that will clarify areas of the law that were not part of this case.

The SCC had ruled on two of the same Criminal Code provisions (1 and 2 above, common bawdy house and communicating for the purpose of prostitution) in a constitutional reference case in 1990. Justice Himel, an Ontario court judge, overturned the SCC’s 1990 decision on both points in her decision at trial in this case (Bedford). Many in the legal community thought Justice Himel should have been required to follow the precedent of the SCC's 1990 decision.

The Court of Appeal agreed with Justice Himel in regard to the bawdy house Code provisions (1 above). In doing so the Court of Appeal outlined a rationale for when it thought a decision of the SCC could be overturned by a lower court. This presents the SCC with the need to clarify if, when and under what conditions one of its decisions might be overturned by a lower court. The possibility of lower courts overturning decisions of the highest court in the country could potentially impact the interpretation of the law in every courtroom in Canada.

In regard to the second provision from the 1990 reference case, communicating for the purpose of prostitution (2 above), the Ontario Court of Appeal outlined a rationale for when it thought a decision of the SCC could not be overturned by a lower court. Again, SCC clarification on this point will impact cases across the country.

Concerning the provision not considered by the SCC in 1990, living on the avails of prostitution (3 above), the Court of Appeal decided to re-write the language used by Parliament to align with the five judges' sense of what Parliament actually intended. The court identified the principles it thought should be applied to guide the courts in cases where re-writing the laws of the legislatures seems the cure, again, knowing it highly likely the SCC will be asked to review and clarify the issue.

In the language of the street rather than the courtroom, “Well played Court of Appeal, well played.”

The result? While it would be better for almost all who are trapped in what has been called “the world’s oldest oppression” to have Parliament enact laws that would criminalize the purchasers and procurers of sexual services (the “johns” and the “pimps”) while enabling women to exit from prostitution without fear of prosecution (the so-called “Nordic model” of prostitution law), the Ontario Court of Appeal has created a temptation for Parliamentarians to want to see the response to the three questions dealing with the authority of the courts.

I suspect Mr. Young’s celebration of victory will be short lived as it will soon be time to prepare for battle before the highest court in the land.

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