“These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms,” Justice Susan Himel of Ontario’s Superior Court of Justice said in Tuesday’s landmark decision.
The long-awaited judgment had been on reserve for nearly a year.
Himel said that while she has concluded the laws amount to a serious violation of the Charter, she has imposed a 30-day “stay” on her decision to give lawyers for the federal and provincial governments, as well as the women at the centre of the case, an opportunity to make fuller submissions on whether her decision to invalidate the laws should be placed on hold for an even longer period of time.
“I am mindful of the fact that legislating in response to prostitution raises difficult, contentious and serious policy issues and that it is for Parliament to fashion corrective legislation,” wrote Himel.
“This is wonderful,” dominatrix Terri-Jean Bedford told reporters at the University Ave. courthouse.
Bedford and prostitutes Valerie Scott and Amy Lebovitch had asked the court to strike down Criminal Code provisions dealing with prostitution, contending the laws violate their constitutional right to security of the person and freedom of expression.
They argued that restrictions on keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade force sex workers onto the street and expose them to violence.
In an affidavit filed with the court, Bedford described scars she has from being hit on the head with a baseball bat by a customer many years ago when she worked as a street prostitute.
The women argued that if the law permitted sex workers to conduct their business indoors, they could employ safety measures such as the use of security guards and monitoring devices.
But when the case was argued in Toronto last fall, lawyers for Ontario’s attorney general suggested there are already measures that women on the streets can employ to ensure safer working conditions, including simply warning each other about customers with a propensity for violence.
Lawyers for the federal government maintained that prostitution is inherently dangerous no matter where it is practised.
The Criminal Code prohibitions, Canada argued, are meant to prevent the commercialization of the sex trade and protect women from exploitation.
In her ruling, Himel said the criminal prohibition on keeping a common bawdy house is overly broad because it has the potential to punish sex workers who do not create the kind of neighbourhood disruption the legislation was designed to prevent.
Most prostitutes in Canada are “independent operators” and the impact of their business, while working discreetly from home, could be different from a large brothel employing many prostitutes, the judge said.
Although prostitution itself is not illegal in Canada, almost everything associated with it is, a situation that was once described as “bizarre” by a judge of the Supreme Court of Canada.
The Supreme Court dismissed a slightly narrower challenge to the country’s prostitution laws in 1990.
At that time, the court ruled that restrictions on communicating for the purposes of prostitution was a justifiable limit on free expression because the law was meant to discourage the nuisances of street prostitution and related activities such as drug trafficking.
As part of their case, Bedford, Scott and Lebovitch pointed to a report from a Parliamentary committee that was released in 2006, several years after the Supreme Court had considered the constitutionality of the legislation.
The report concluded that restrictions on communicating had merely shifted prostitution from certain neighbourhoods into others.
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