A work colleague and I wrote a post on this case last October. We’ve been eagerly waiting to see if the Ontario Superior Court of Justice would decriminalize the oldest profession in the world. To our surprise, it did—somewhat.

What first caught our attention with this case was Alan Young’s (the Osgoode Hall law professor representing the women) statement to CTV News. He aptly said that:

His clients can’t understand why prostitution itself is not directly prohibited, and yet all incidental transactions involved in prostitution are”.

The key issue is the contradictory laws that make performing sex for money (prostitution) legal in Canada (that is, prostitution is not included as a criminal offence in the Criminal Code of Canada), while restricting where prostitutes can practise the trade safely, and severely limiting the people with whom they can associate. The Criminal Code prohibits soliciting sex, living off of the money earned from sex and operating a “bawdy house”, each of which can be so broadly defined as to make it extremely difficult for prostitutes and other sex-trade workers to operate.

The sex-trade workers in this case argued that the restrictions on their work activities violated their rights under the Charter of Rights and Freedoms to security of the person and freedom of expression. Sex workers testifying at the hearing stated in Court that, “If prostitutes could work from home they would be safer and not a public nuisance on the street.”

However, the Attorney General of Ontario, respondent in the case, argued to the contrary:

Prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large. … social science evidence in Canada and internationally demonstrates that the risks and harms flowing from prostitution are inherent to the nature of the activity itself. Thus, the risks and harms exist regardless of the many ways in which prostitution is practised, whether ‘street’ or ‘off-street’, and regardless of the legal regime in place. Moreover, prostitution is associated with other harmful activities that include physical violence, drug addition and trafficking, the involvement of organized crime and the globalization of the sex industry and trafficking in persons.”

On September 28, 2010, the Superior Court, without deciding whether or not there is a constitutional right to sell sex or the right policy model (criminalization, regulation or abolition), agreed with the plaintiffs’ arguments, ruling that the Criminal Code provisions relating to prostitution contribute to the danger faced by sex-trade workers in Ontario. Thanks Simon Fodden for this week’s timely blog post .

Moreover, Justice Susan Himel ruled that the laws that forbid running a bawdy house, communicating for the purpose of prostitution, and living off the avails of prostitution were unconstitutional and are not in accord with the principles of fundamental justice. She further stated:

The laws “force prostitutes to choose between their liberty interest and their security of the person as protected under the Charter of Rights and Freedoms.”

It is important to note that the provisions that the Court struck down only involve adult prostitution. The provisions relating to obtaining sexual favours from persons under the age of 18 were not challenged and remain valid.

Although the decision strikes down provisions in the Criminal Code that makes adult prostitution a criminal offence, it is ultimately up to the government of Canada to “fashion corrective action”, as the judge stated in her ruling. As a result, the affect of the ruling is suspended for 30 days to allow the government time to consider how to address potential consequences, including the emergence of unlicensed brothels.

The federal government has already responded by saying it is seriously considering an appeal. A spokesman for Ontario’s attorney general said his office will be reviewing the decision carefully and will consult federal colleagues regarding a potential appeal. No surprise there!

While waiting for the Ontario and federal governments to make up their minds, municipalities in Ontario could counter the negative potential consequences of this ruling by introducing municipally based licensing of brothels.

So what do I think? To me, this case is not about whether prostitution is right or wrong, moral or immoral, but how best to handle the issue of prostitution to protect those who choose to practise it or participate in it and the public well-being. Should prostitution be decriminalized or criminalized? Should it be regulated? Or can there be a combination of the above?

I am sure this ruling will launch a national public debate of the issue, and a government committee may be formed to study the topic of prostitution in Canada as occurred back in 2006 and 1985.

Twenty years ago, the Fraser Report (1985, see footnote) study of prostitution in Canada made a series of recommendations aimed at improving the lives of both prostitutes and the communities affected by prostitution. The federal government of the day chose not to act on the Fraser Committee’s recommendations, but maybe it should have.

The report proposed to amend the current contradictory legal framework, in which adult prostitution per se is legal, although most activities related to it are illegal. The report’s conclusion was that prostitution is a social problem that requires both legal and social reforms. Going against popular opinion with respect to judicial interpretation of solicitation, it argued that the contradictory and often self-defeating nature of the various Criminal Code sections relating to prostitution was at the root of the high levels of street prostitution in Canada; despite the fact that prostitution is legal, the prostitution laws control when and where it can take place—essentially leaving only the street. The report emphasized that this issue had to be addressed by any criminal law reform.

Many believe, as do I, that prostitution will never go away, and it is better to regulate than to punish. (A common counter-argument is that murder and theft will also never go away, so should we legalize those as well? But it seems clear that prostitution causes much less harm than violent crimes.)

The Fraser report rejected complete decriminalization for a number of reasons, but suggested a combination of tough criminal sanctions against street prostitution while endorsing a licensing system for brothels (some form of regulation).

Regulation—also known as legalization—allows prostitution under certain circumstances, usually through zoning bylaws (confining to certain areas such as the red light district in Amsterdam) or licensing (providing permits to a limited number of prostitutes to work in certain areas of a city such as in Nevada). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not abolition so much as control, the goal being to keep prostitution limited to areas of the city where it will not offend the rest of the population.

Control also means keeping track of health problems, drug issues, unruly and violent clients and missing women—real dangers to society. One might argue that these are all caused by prostitution, but I disagree. They are associated with prostitution because sex workers don’t have the legal and social resources to deal with them in meaningful ways. For example, sex workers cannot currently hire bodyguards because the law prohibits anyone from profiting from a prostitute’s earnings. Also, sex workers can’t easily go to police for help when they’ve been assaulted by a client because they’ll probably have to admit to a crime.

I don’t know what the best option is for dealing with prostitution, but I do believe that it’s more of a social and health issue than a legal or criminal one. Prostitution happens, and it happens probably a lot more than we imagine. There can be no doubt that some sex workers get into prostitution because they feel they have no choice, or they’re forced into it by partners, or they have addictions to feed and low self-esteem. Should these factors make someone a criminal?

Moreover, can we apply these factors to everyone in the trade? Is it unimaginable that a woman or man might choose freely to exchange sex for money, and that that person is confident and smart and suffers from no addictions? And then, isn’t it better to offer such people society’s help rather than turning our backs on them?

The federal government has already announced that it will appeal the ruling, which will hopefully lead to a reasoned public debate on the topic, and force the government to deal with the contradictory law, either by making prostitution a crime proper or by clarifying the Criminal Code provisions that restrict related activities. Whatever the final outcome of the case, I hope the federal government will seriously consider the actual and potential dangers that sex workers face in their work, and push to enact legislative changes that enable them to protect themselves and to seek legal protection as needed.

Special Committee on Pornography and Prostitution. Pornography and prostitution in Canada [report], Vols. 1 & 2. 1985, by Communications and Public Affairs, Dept. of Justice Canada in Ottawa, Ontario.

I would like to thank Adam Gorley for his contribution to this post.