[SWAF-Potluck] Globe and Mail A10-A11: Supreme Court rules on prostitution

[Andy Sorfleet]

Here is the double-page spread as it appears in the print edition. All of
the stories are in this one file. I have only been sending clippings that
have relevant opinion. Please notice a story: "The political options." I am
of course doing a lot more press clipping, so if you are interested in
seeing the full range of coverage just hit me up! :^) AS

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http://www.theglobeandmail.com/

GLOBE AND MAIL
Saturday, December 21, 2013

Sean Fine




pp. A10-A11


Supreme Court rules on prostitution

'Parliament has the power to regulate against nuisances, but not at the
cost of the health, safety and lives of prostitutes. ... The prohibitions
all heighten the risks. ... They do not merely impose conditions on how
prostitutes operate. They go a critical step further, by imposing
*dangerous* conditions on prostitution; they prevent people engaged in a
risky -- but legal -- activity from taking steps to protect themselves from
the risks.'

Chief Justice Beverly McLachlin in unanimous ruling

[image: Inline image 1]

[photo caption]
Terri-Jean Bedford, Valerie Scott and Amy Lebovitch, the three principals
in the prostitution case, stand together at the Supreme Court of Canada on
Friday.
(Adrian Wyld/THE CANADIAN PRESS)

Reach of unanimous ruling extends beyond prostitution issue

The decision: The Supreme Court has struck down the country's major
prostitution laws saying they create severe dangers for vulnerable people.
Sean Fine explains

Laws that heighten the dangers to vulnerable prostitutes violate Canada's
basic values and cannot stand, the Supreme Court of Canada has ruled.

The unanimous 9-0 ruling shows that the country's most influential court,
which now has a majority of its members appointed by Prime Minister Stephen
Harper, is as unwilling as ever to defer to government when it perceives
government using criminal laws in ways that put vulnerable people at risk
of severe harm or death.

The ruling is one of the biggest since Canada's criminal law of abortion
was struck down in 1988. A similar principle was at the heart of that case:
Criminalizing people at risk will not be tolerated if it is done in such a
way as to heighten risks. In this case, Ottawa argued that prostitutes
bring the risks on themselves, but the court accepted that vulnerable
people are not always in a position to avoid risk. "Many prostitutes have
no meaningful choice," Chief Justice Beverley McLachlin wrote for the court.

The court's willingness to spend its political capital on the protection of
prostitutes, by striking down laws with roots that go back decades, and
even to pre-Confederation days, sends an unmistakable message to the
Conservative government: Any new laws would have to "take seriously the
safety concerns of people who are engaged in sex work," said Elaine Craig,
a law professor at Dalhousie University.

Justice Minister Peter MacKay made it clear that he intends to continue to
criminalize the sex trade. The government is "exploring all possible
options to ensure the criminal law continues to address the significant
harms that flow from prostitution to communities, those engaged in
prostitution and vulnerable persons," he said.

The court suspended its ruling for a year, though it is doubtful that
police and prosecutors will continue laying charges, which in Canada's
backlogged lower courts could take more than a year to reach trial.
"Current laws remain in place, so we have no plan to speak about it now,"
said Constable Brian Montague, a spokesman for the Vancouver Police
Department, which he said already has policies that "reflect" the court's
concerns. "The safety of sex workers is a priority for us and enforcement
is often a last resort. Unfortunately it is still too early to speculate
exactly how any changes to law will affect the policies and procedures of
the VPD."

The court stressed that it offered no opinion on whether prostitution
should be legal. It said most countries do attempt to control prostitution
because of its potential for harm. "Parliament has the power to regulate
against nuisances, but not at the cost of the health, safety and lives of
prostitutes," Chief Justice McLachlin said in the ruling.

She pointed Mr. MacKay in a potential direction: keeping some aspects of
the current laws. The court struck down bans on street solicitation,
brothels and living off the avails of prostitution. But it said they are
all intertwined and have an impact on one another. "Greater latitude in one
measure -- for example, permitting prostitutes to obtain the assistance of
security personnel -- might impact on the constitutionality of another
measure -- for example, forbidding the nuisances associated with keeping a
bawdy-house. The regulation of prostitution is a complex and delicate
matter. It will be for Parliament, should it choose to do so, to devise a
new approach, reflecting different elements of the existing regime."

The unanimity tells Mr. MacKay that pleas for deference to legislators will
fall on deaf ears if a law's purposes -- in this case, controlling
neighbourhood nuisances -- are out of whack with the damage to those who
are unable to get out of harm's way. It is much the same message as the
court delivered two years ago when the federal government tried to close
down Insite, a Vancouver clinic at which addicts can inject illegal drugs
under a nurse's supervision. In that case, the court, with only two members
appointed by Mr. Harper, was unanimous that the government could not act in
ways that put vulnerable addicts at risk of death.

Chief Justice McLachlin explained how the current laws make prostitutes
vulnerable: The ban on brothels prevents them from working in safer indoor
locations. The law against living off the avails of prostitution is
intended for pimps, but also bans drivers, managers, bodyguards,
accountants and receptionists. The ban on street solicitation prevents
prostitutes from weeding out dangerous clients.

=-=-=-=-=-=-=

[pull quote]
"The sky's not going to fall in. People said that when women got the right
to vote, equal pay; equal rights and same-sex marriage -- all of those
things, every single one, people said the sky would fall in. It did not.
Society is the better for it and society will be the better for sex workers
having proper civil and occupational rights."

Valerie Scott
Sex-trade worker who is one of the three principals in the case

[pull quote]
"We've never gone after the receptionist or the bookkeeper. We've always
gone after the parasitic relationship, the pimp, or where there's
exploitation. ... For the Calgary Police Service, consensual paid sex
between consenting adults in a private place, we have no business
enforcing. So that certainly wasn't our target. We went after the women or
sex-trade workers that were being exploited, as well as we focused on
rescuing the underage sex-trade workers, trying to get them out of the
lifestyle.

Rob Rutledge
Calgary Police Staff Sergeant

=-=-=-=-=-=-=

The political options: Parliament now has a year to respond to the ruling.
As Josh Wingrove reports, there are essentially three broad responses on
the table, ranging from decriminalization to complete criminalization

Do nothing

Parliament could let the laws expire in a year and essentially
decriminalize prostitution. This would be the preferred option of some sex
workers and their advocates, who say other laws -- barring, for instance,
assault -- are already able to handle criminal cases in the sex trade.

"My clients, and I think sex workers generally, are calling on the
government to actually do nothing and just allow sex workers and the
industry to be protected by the laws that remain on the books right now,"
said Katrina Pacey, litigation director at Pivot Legal Society, which
represented sex workers intervening in the Supreme Court case.

Doing so would leave prostitution regulation to provinces and
municipalities. "What the industry is asking is to shift it away from a
criminal law matter to it being a labour, employment, occupational health
and safety matter," Ms. Pacey said.

This approach, however, appears to have little support in Parliament. "We
don't believe that decriminalization will address the harms that come from
prostitution," Justice Minister Peter MacKay said in an interview this week
before the court ruling. On Friday, his office said the Conservative
government is looking at all ways to "ensure the criminal law continues to
address the significant harms that flow from prostitution."

Liberal MP Carolyn Bennett, responding to the ruling, agreed Canada does
"need to put something in place" and not just decriminalize. NDP Justice
Critic Françoise Boivin said her caucus is considering all options,
including decriminalization. "I've got as many people who think one way as
another in caucus," she said.

Among those who oppose this model is the Women's Coalition for the
Abolition of Prostitution. "Then we have a situation that's kind of a Wild
West in which there's no criminal law at all speaking to prostitution,"
said Janine Benedet, a law professor who represented the coalition in the
case.

Target johns and pimps

The so-called Nordic model, based on the experiences of Sweden and Norway,
targets clients and pimps rather than sex workers themselves. It's the
model advanced by Conservative MP Joy Smith, an outspoken opponent of the
sex trade.

"With the Nordic model, it does focus on the johns and the traffickers --
and the predators, whether they're women or men. That's what I like about
it," she said in an interview, adding it needs to be tailored as a "made in
Canada" version, with a focus on preventing exploitation of the "very
young."

Ms. Smith favours neither a law that targets sex workers nor full
decriminalization, which she said amounts to "opening the gate. It's like
saying this is an industry we have in Canada. It's not an industry. This is
a crime against the dignity of women."

The Supreme Court came to "pretty strong conclusions" that make tinkering
with existing laws a difficult path, said Cheryl Milne, executive director
of the University of Toronto's David Asper Centre for Constitutional
Rights, which intervened in the case. She expects government will consider
laws that target johns and pimps.

And it's possible to do that without violating the Charter, said Bruce
Ryder, an associate professor at York University's Osgoode Hall Law School.
He expects Conservative MPs will "be able to build consensus around a new
approach to criminalization of prostitution, and the prime candidate is
clearly the Nordic model." He thinks it's the most likely outcome. However,
he warned that doing so could leave Canada with stricter laws than it had
before. "The sex-work prohibitionists lost in court, but they're likely to
find a more receptive audience in Parliament," he said.

Pivot Legal Society, representing sex workers who intervened in the case,
said "there's great concern and fear of the Nordic model" being brought to
Canada. "The reality is even targeting demand, targeting clients, targeting
pimps, drives the whole industry underground," said Katrina Pacey, Pivot's
litigation director.

Criminalize prostitution entirely

The make-it-all-illegal approach would see johns, pimps and sex workers
alike targeted under new laws. The Supreme Court noted that "it is not
against the law to exchange sex for money," but said that's a choice
Parliament has made. "Parliament is not precluded from imposing limits on
where and how prostitution may be conducted, as long as it does so in a way
that does not infringe the constitutional rights of prostitutes," the court
found.

But that's an option few are considering.

"It's very hard to find a group in Canada who has any direct involvement in
this issue who is advocating for criminalization of prostitution," Prof.
Benedet said. Ms. Smith, the Conservative MP, says she hears from some
people calling for full criminalization, but thinks that goes too far and
would punish the women.

"If you accept that premise that prostitution is worth trying to eradicate,
it's presumably because you view it as being inherently exploitative of the
sellers. So it makes no sense to criminalize the people you believe are
being exploited," Prof. Ryder added.

Jamie Cameron, another Osgoode Hall Law School professor who is a
constitutional scholar, said the prospect of across-the-board
criminalization is not "especially realistic. Whether it's constitutional
or not is another matter." She also stressed the court's ruling signals any
new laws must be evidence-based. "That's been an issue with the Harper
government's legislative agenda -- that much of it seems to fly in the face
of evidence," she said.

Ms. Pacey, who favours decriminalization, agrees that making prostitution
itself illegal isn't a realistic option. "The great debate in Canada, in my
view, or the most active debate, is between the Nordic model and a
decriminalization model," she said.

=-=-=-=-=-=-=

[pull quote]
"It's one small step in a thousand-mile journey. Now the hard work begins
in how to replace the archaic regime."

Alan Young
Lawyer for Terri-Jean Bedford

[pull quote]
"It's a sad day that we've now had confirmed that it's okay to buy and sell
women and girls in this country. I think generations to come -- our
daughters, their grand-daughters and so on -- willl look back and say,
'What were they thinking?'"

Kim Pate
Executive Director, Canadian Association of Elizabeth Fry Societies

[pull quote]
"The Conservative government will have to provide us with legislation to
protect women from trafficking and to protect our neighbhourhoods, our
properties and our children from being influenced into this type of
business.

Dianne Watts
Real Women of Canada

=-=-=-=-=-=-=

The broad reach: Sean Fine looks at an important legal change that is part
of the prostitution ruling, one that is giving assisted-suicide supporters
new hope for a breakthrough

The Supreme Court of Canada did much more than strike down three
prostitution laws on Friday. It set down a major change to the way lower
courts can revisit precedents by the Supreme Court. In doing so, it gave
hope to those who support a right to assisted suicide that the Supreme
Court will reverse its own 1993 rejection of that right.

Trial judges can overturn previous constitutional rulings in certain
circumstances, the court said. And the circumstances in the prostitution
ruling were similar to those in a right-to-die case that has worked its way
through British Columbia's courts to the Supreme Court.

If new legal issues are raised, or if there is a change in the
circumstances or evidence that "fundamentally shifts the parameters of the
debate," trial judges may revisit constitutional precedents, Chief Justice
Beverley McLachlin wrote. And the trial judge's findings of changes in
social norms will carry great weight with higher courts.

That is what happened in the assisted-suicide cases of Gloria Taylor and
Kathleen Carter in B.C. Ms. Taylor, 64, suffered from amyotrophic lateral
sclerosis (ALS), and Ms. Carter, 89, from spinal stenosis, a degenerative
condition. (Both are now dead.) A trial judge found that changing social
norms had shifted the debate, and struck down the crime of assisted in a
suicide. But the B.C. Court of Appeal said the judge should have followed
the Supreme Court's precedent from 1993, in the Sue Rodriguez case. Ms.
Rodriguez, too, had ALS and sought a physician's help to die.

The Supreme Court has always had the power to overturn its own precedents.
But Vancouver lawyer Joe Arvay says the court's prostitution ruling
suggests a greater likelihood that the court will reject its 1993 thinking
about assisted suicide because "of the court's comments on the role of
precedent, the importance of deference to the fact finding by the trial
judge and its development of the jurisprudence under Section 7 of the
Charter."

Traditionally, when the Supreme Court rules on a constitutional issue, only
it can overturn the precedent. But Justice Susan Himel of the Ontario
Superior Court refused to abide by the Supreme Court's ruling in the 1990
prostitution reference case. In that case, the court upheld laws against
brothels and street solicitation. Justice Himel said the arguments were
different this time around and there was greater understanding about how
laws exacerbate the dangers of prostitution. She amassed 25,000 pages of
evidence about those dangers, which the Ontario Court of Appeal said it was
entitled to disregard.

The Supreme Court mostly agreed with Justice Himel.

"This balances the need for finality and stability with the recognition
that when an appropriate case arises for revisiting precedent, a lower
court must be able to perform its full role," Chief Justice McLachlin wrote.

In effect, says Cheryl Milne, executive director of the David Asper Centre
for Constitutional Rights, which intervened in the case to argue for the
new approach, there is a "planned obsolescence" built into Canadian
constitutional law. It does not need to be stuck in the 1980s, when many
major constitutional decisions were written, added Sonia Lawrence, a
professor at Osgoode Hall Law School.

=-=-=-=-=-=-=

The victor: Terri-Jean Bedford spent 20 years fighting prostitution laws

Twenty years ago, Terri-Jean Bedford was a dominatrix running her own
business, the Bondage Bungalow, with a male security guard, in suburban
Thornhill, Ont., when the police raided her operation. She was ultimately
convicted of operating a bawdy house.

She has been fighting governments ever since over prostitution laws. On
Friday, she said she felt vindicated after the Supreme Court of Canada
struck down the country's major prostitution laws.

"I'm taking off my shackles. It's emancipation day," the 54-year-old, who
was born in Collingwood, Ont., said in an interview.

"I never thought I was a criminal. All my life I was trying to eke out a
living, doing what I like to do."

Ms. Bedford is one of three current and former prostitutes who brought the
constitutional challenge to the prostitution laws. In court documents, she
said she was abused as a child, entered prostitution at 16 to pay for her
drug addictions and those of her 37-year-old boyfriend and was "raped and
gang-raped too many times to talk about" as a street prostitute in
Winnipeg, Calgary and Vancouver.

She was ecstatic after the ruling. "It's a great day for Canada, a great
day for women from coast to coast," she said.

She said the Swedish model of criminalizing johns but not prostitutes won't
work, because "you can't punish men for their natural needs."

She told reporters in Ottawa: "Now, the government must tell all consenting
Canadians, all 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."

Sean Fine
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