Canada’s Supreme Court strikes down laws banning prostitution
Canada’s Supreme Court on Friday struck down key portions of a law that effectively criminalized prostitution by banning brothels and soliciting on the streets, declaring this disproportionate.
But it stayed its unanimous nine to zero ruling for one year to allow Parliament to consider whether or not impose other limits on where and how prostitution may be conducted.
This case was “not about whether prostitution should be legal or not,” Chief Justice Beverley McLachlin said in the landmark decision.
Instead, she said, the judges ruled on “whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not.”
“I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.”
The original legal challenge was brought by three sex workers who argued that the restrictions on prostitution — criminalizing keeping a bawdy-house, living on the avails of prostitution or soliciting sex in public — put their safety at risk.
The three Toronto women — Terri Jean Bedford, Amy Lebovitch and Valerie Scott — argued that prohibiting solicitation, endangers prostitutes by forcing them to seek customers on street corners.
The law, they said, also prevented them from taking safety measures such as hiring security guards or screening potential clients in an effort to protect themselves from violence.
They called for the right to open brothels to provide a safer environment for prostitutes.
A lower court found the measures, aimed largely at curbing nuisance crimes tied to prostitution, to be “arbitrary, overbroad or grossly disproportionate,” and indeed put sex workers at risk.
“The danger faced by prostitutes greatly outweighs any harm which may be faced by the public,” it said.
An appeals court agreed, but upheld a ban on communicating for the purposes of selling sex.
Canada’s then justice minister Rob Nicholson appealed the ruling, arguing that prostitution is “harmful for society as it exploits Canada’s most vulnerable people, especially women.”
But the top court justices agreed with the three women at the centre of the case, saying the curbs infringe on prostitutes’ “constitutional right to security of the person.”
The government can no longer tell “consenting adults what we can and cannot do in the privacy of our home for money or not, and they must write laws that are fair,” Bedford said in reaction to the ruling.
“Society will be the better for sex workers having proper civil and occupational rights,” added Lebovitch, outside the courtroom.
Bedford worked for 14 years as a street prostitute, a massage parlour attendant, an escort, an owner and manager of an escort agency, and a dominatrix, but retired in 2010.
Lebovitch has been a sex worker since 1997. Court documents said she moved off the streets to work at an escort agency after seeing women’s injuries and hearing of the violence suffered by other street prostitutes.
She told reporters she hoped parliamentarians will now consult sex workers before rewriting the laws, or forgo any new prostitution laws and leave it up to municipalities to regulate the sex trade.
Don Hutchinson, counsel for the Evangelical Fellowship of Canada, expressed disappointment with the decision, and suggested Parliament should consider now making prostitution itself illegal.
“What we’re suggesting is for the first time in Canada, prostitution would be illegal. The purchase of sexual services or the rental of somebody’s body would become illegal,” he said.
He cited concerns that many women are forced into prostitution and its reported links to human trafficking.