A landmark ruling in the Supreme Court in Ottawa has ruled that prostitution laws are unconstitutional, but prostitution will remain illegal in Canada for another 12 months. Although prostitution–the exchange of money for sex–has itself never been illegal in Canada, the illegality of activities related to prostitution have effectively made prostitution illegal.
Three laws were ruled on December 20:
– Communication in a public place for the purposes of prostitution.
– Living off the avails of prostitution (pimping).
– Owning, managing, leasing, occupying, or being found in a brothel.
These laws were justified in theory under two categories of public concern. Public communication for prostitution was considered to be a public nuisance. “Living off the avails” and brothels were considered to contribute to the exploitation of prostitutes.
Public nuisance also figures into the concern over brothels. In the trial concluded Friday, Canada (Attorney General) v. Bedford, prostitutes had challenged the constitutionality of the these three laws. The prostitutes held that these laws denied them their guaranteed Charter right to “security of person” “in a manner not in accordance with fundamental justice.” Since the prostitutes were arguing that the case could be resolved entirely on the grounds of “security of person,” it was not necessary to go into any other cases for in ruling on the manner.
A main point of argument by the prostitutes was violence. The prostitutes argued that measures that would protect them from violence (hiring security guards, screening clients) were prevented by the laws. A secondary point of argument was that the laws infringed their freedom of expression as guaranteed by the Canadian Charter. Another argument leveled against the Canadian prostitution-related laws was the confusion resulting from the lack of clarity about whether prostitution was, or was not, illegal in Canada.
Many activist groups signed on against the laws. Canadians in general have not been asked their views on legalizing prostitution. Polls asking Canadians whether they considered prostitution “immoral” found that in 2006, 68 percent of Canadians did think it was immoral. In 2009, 42 percent found it “morally acceptable.” Generally, findings showed that the young and females more often consider prostitution “immoral.”
The court in a 9 – 0 decision determined that the three laws were inconsistent with the Charter.
It was determined that “living off the avails” must be amended so that it only applies “in circumstances of exploitation.” The current laws will remain in effect for 12 months, after which time they will no longer be valid. In this 12 months, Parliament will be able to write or amend laws affected by the ruling.
In the ruling the Justice McLachin found that, “The choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one. Neither alternative is without difficulty. However, considering all the interests at stake, I conclude that the declaration of invalidity should be suspended for one year.”
The Conservative Party of Canada was not pleased with the ruling. In a tweet, Calgary MP Michelle Rempel wrote, “…Our judiciary struck a blow to women’s safety and equality this morning. We aren’t a commodity to be bought and sold.”
Jason Kennedy, Canada’s Minister of Employment and Social Development, commented about his surprise over the ruling and that legislators should make law–not judges. “My own view is the judiciary should be restrained of the exercise of overturning a democratic consensus. Having said that we of course respect the independence of the judiciary and its role,” said Kenney.
Prime Minister of Canada Stephen Harper commented, “We view prostitution as bad for society and we view its effects as particularly harmful for our communities and women, and particularly for vulnerable women, and we will continue to oppose prostitution in Canada.”
Written by Day Blakely Donaldson