[Sexworkersandfriends..potluck..] Ontario Court of Appeal greenlights brothels, sweeps aside many of Canada's anti-prostitution laws

[Andy Sorfleet]

NATIONAL POST
Monday, March 26, 2012

Adrian Humphreys




Ontario Court of Appeal greenlights brothels, sweeps aside many of
Canada's anti-prostitution laws

[photo caption]
Alex Urosevic for National Post
Nikki Thomas, of Sex Professionals of Canada, Terri-Jean Bedford and
Valerie Scott are joined by York University professor Alan Young
during a press conference in Toronto Monday after the Court of Appeal
for Ontario swept aside some of the country's anti-prostitution laws.

LEGAL: Hiring drivers, bodyguards and support staff
ILLEGAL: "Exploitation" of sex workers by pimps
LEGAL: Working in organized brothels or "bawdy houses"
ILLEGAL: Openly soliciting customers on the street

TORONTO -- The Court of Appeal for Ontario has swept aside some of the
country's anti-prostitution laws saying they place unconstitutional
restrictions on prostitutes' ability to protect themselves.

The landmark decision means sex workers will be able to hire drivers,
bodyguards and support staff and work indoors in organized brothels or
"bawdy houses," while "exploitation" by pimps remains illegal.

However, openly soliciting customers on the street remains prohibited
with the judges deeming that "a reasonable limit on the right to
freedom of expression."

The province's highest court suspended the immediate implementation of
striking the bawdy house law for a year to allow the government an
opportunity to amend the Criminal Code.

[photo caption]
Alex Urosevic/National Post
Dominatrix Terri-Jean Bedford and Nikki Thomas Executive Director of
Sex Professionals of Canada celebrate after the Court of Appeal
decision Monday.

"Prostitution is a controversial topic, one that provokes heated and
heartfelt debate about morality, equality, personal autonomy and
public safety. It is not the court's role to engage in that debate.
Our role is to decide whether or not the challenged laws accord with
the Constitution, which is the supreme law of the land."

The appeal stems from the legal oddity that while prostitution was not
illegal, many activities surrounding it were, including running a
brothel or bawdy house, communicating for the purpose of prostitution
and living on money earned by a prostitute.

That disconnect led to a constitutional challenge mounted by three sex
trade workers who say the laws prevented them from taking basic safety
precautions, such as hiring a bodyguard, working indoors or spending
time assessing potential clients in public.

In 2010, Ontario Superior Court Judge Susan Himel agreed with them,
ruling the increased danger for prostitutes was "simply too high a
price to pay for the alleviation of social nuisance."

The debate fell across a backdrop of carnage against street
prostitutes, including serial killer Robert Pickton and missing women
across Alberta.

The federal and provincial governments appealed for the reinstatement
of the three laws that remained in place until Monday's decision.

It took nine months of deliberation after a week of intense oral
arguments last summer and stacks of written material -- more than
25,000 pages of evidence in 88 volumes.

Witnesses included current and former prostitutes, police officers, a
prosecutor, social and activist organizations, a politician and a
journalist.

In the end, three appeal judges -- David Doherty, Marc Rosenberg and
Kathryn Feldman  -- formed a majority opinion with two partial
dissenting opinions by James MacPherson and Eleanore Cronk.

The ruling looked for a balanced approach:

The prohibition on bawdy houses, or brothels, in Section 210 of the
Criminal Code, was deemed unconstitutional and must be struck within
12 months unless amended by Parliament;

The prohibition against living on the avails of prostitution in
Section 212 of the code was deemed a partial constitutional violation
because it criminalized non-exploitive commercial relationships
between prostitutes and others; the justices' solution is to limit the
law's application only to pimps, or those living off a prostitute's
income "in circumstances of exploitation." This reworked provision
takes effect in 30 days;

The communication law in Section 213, designed to keep the sex trade
off the street and away from public view, remains untouched and in
full force.

The two judges' offering a partial dissent would have also struck down
the communicating law, saying: "the communicating provision chokes off
self-protection options for prostitutes who are already at enormous
risk."

The split and balanced decision, however, is likely to do little to
soothe public anxiety over the changes.

[photo caption]
Alex Urosevic for National Post
Nikki Thomas, Terri-Jean Bedford and Valerie Scott celebrate in Toronto Monday.

After the ruling was announced, two of the women who pressed the case
and their lawyer praised the court for its foresight and understanding
of such a controversial matter.

"The new spring has come for sex workers, a new era has been ushered
in," said Alan Young, a noted constitutional lawyer representing
Terri-Jean Bedford, 52, Valerie Scott, 53, and Amy Lebovitch, 33.

"I am thrilled that the Court of Appeal has done the right thing," he
told a packed press conference at a downtown community centre. "They
may not have gone as far as the Superior Court judge [in the case
under appeal], but when you actually look at the result, they've done
the right thing in terms of modifying the law so that sex workers will
not face the same risks they face on a daily basis."

Ms. Scott said the ruling "pretty much declared sex workers persons
today. I didn't think I would see that in my lifetime, but here we
are… This is wonderful."

Nikki Thomas, executive director of Sex Professionals of Canada, said
all levels of government now needed to discuss with sex workers the
regulatory framework for opening and running brothels and other
aspects of the sex trade. As well, she said, the sex industry needs to
convince the public there is no need for them to fear the new regime.

"We are human, we are taxpayers," she said. "We are not going to have
fire and brimstone and sex workers raining down from the sky."

But after the smiles and laughter of the planned remarks, another
point of view from former sex trade workers intruded.

Several former prostitutes angered by the decision, said the court's
ruling will prevent social workers and police from intervening to
rescue underage prostitutes and sends the wrong message to children
that prostitution is an acceptable career, several said.

"I worked the street for 15 years and this won't keep anyone safe,"
said Katrina MacLeod, who now works with Walk With Me, a group working
to help women out of the sex trade. "It's more than troubling, it's
disgusting."

Bridget Perrier, tearful and angry, held up a metal coat hanger
twisted into a baton, saying it is a tool known as a "pimp stick" --
heated up under a flame and then used to whip and beat prostitutes.

"This is what my pimp used on me, every day. I was beaten with one of
these. It's not just these, it's curling irons, Tasers, razor blades.
I cannot give birth because my inner organs being used and abused from
a young age. I entered the sex trade at 12 years of age and everyone
needs to be shown a way out," said Ms. Perrier, who now works for Sex
Trade 101, another group helping women leave prostitution.

She called on anti-prostitution laws to be strengthened to stop men
preying on vulnerable women, not loosened.

>From moral and ethical pleas to the stark nitty-gritty of street
solicitation, the court earlier heard impassioned arguments from 19
groups as divergent as the Downtown Eastside Sex Workers United
Against Violence Society and the Catholic Civil Rights League.

The thorny issue transcended traditional ideological divides, with
conservative religious groups finding strange allies in feminist
activists in their support of retaining the prostitution restrictions.

Paramount to the case was that the laws endangered sex workers, a
violation of the Charter protection to "life, liberty and security of
the person."

"On the facts as found, the added risk to prostitutes takes the form
of an increased risk of serious physical harm or perhaps even worse.
Any real increase in that kind of risk must impair the security of the
person," Monday's majority ruling says.

Alan Young, a noted constitutional lawyer representing the sex trade
workers Terri-Jean Bedford, 52, Valerie Scott, 53, and Amy Lebovitch,
33, argued that the government had a responsibility not to increase
the potential harm against its citizens, even those it deems engaging
in an unsavoury trade.

It was not about a constitutional right to prostitution, Mr. Young
argued, but rather a right to security of the person, which the laws
interfered with.

"Forget the law for a moment, this is ethically unsound -- no
government should be able to jeopardize the safety of its citizens
just to send a message. Nothing is safe, completely safe. But can
safety be enhanced by moving it indoors? Absolutely," he argued.

Michael Morris, lawyer for the Attorney-General of Canada, had argued
that it was the act of prostitution itself, not the laws, that created
danger among sex trade workers.

"The harm being caused is not by the state. The state is not the agent
of harm," Mr. Morris told court. "The purpose of these laws is to
discourage and deter people from engaging in these activities."

Among the intervener arguments the justices heard was the view that
prostitution is immoral and must be eradicated through strict laws,
even if that leaves sex workers vulnerable.

Parliament intended to eradicate prostitution because it is "an attack
on the fundamental values of modern Canadian society," argued Ranjan
Agarwal, a lawyer representing the Christian Legal Fellowship,
Catholic Rights League and REAL Women of Canada.

Contrasting that, Cynthia Petersen, a lawyer representing Maggie's, a
Toronto sex workers group, and POWER, an Ottawa sex worker rights
group, argued the laws were needlessly killing sex workers.

Prohibiting communication for the purposes of prostitution may have
been designed to scoot unseemly solicitation out of sight, but it
prevents sex workers from discussing with customers what acts they are
willing or unwilling to offer before they are alone and isolated, she
said.

Whether a prostitute insists on condom use or will allow intercourse
or anal sex or photography or how many customers will be participating
are all relevant discussions, she said.

The decision is binding in Ontario only but will undoubtedly prompt
similar challenges in other provinces.

Earlier, both sides promised an appeal to the Supreme Court if the
court decision went against them.

Any decision by the Supreme Court of Canada on the issue would apply
country-wide.

"It remains open to Parliament to respond with new legislation that
complies with the requirements of the Charter," the decision says.



Dominatrix Terri-Jean Bedford (L), York University professor Alan
Young and Valerie Scott seen during a press conference in Toronto on
March 26, 2012. The Court of Appeal for Ontario has swept aside some
of the country's anti-prostitution laws saying they place
unconstitutional restrictions on prostitutes' ability to protect
themselves.
Photograph by: Alex Urosevic, For National Post
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