This is a guest post by Laura Johnston, re-printed with permission of the author and originally published at The F Word. Laura is a law student who worked for Janine Benedet, counsel for the Women’s Coalition for the Abolition of Prostitution, an intervener in Bedford v Canada.
The Ontario Court of Appeal released its judgment in Bedford v Canada on March 26, 2012. Much of the media coverage has presented this as a startling new shift in Canadian law that “swept aside” prostitution laws. However, the judgment was actually an appeal of a trial decision of the Ontario Superior Court made in 2010 and much of Canada’s prostitution laws have remained intact. There are many things to address in this lengthy judgment, but in this post I just want to clarify what this judgment means and make a few short comments. Click here for a more thorough discussion of the case.
While counsel for the applicants, Bedford, Lebovitch, and Scott is describing the appeal as a victory, they have in fact lost a lot of ground on the appeal. At the trial in 2010, the applicants argued that three offences criminalizing aspects of the prostitution industry were unconstitutional: communicating in a public place for the purpose of prostitution (street prostitution), the bawdy house provision (brothels), and living on the avails of prostitution (pimping). The trial court accepted the applicant’s position completely and struck down all three offences.
The government appealed the trial court decision, which led to the decision the Ontario Court of Appeal just released. Rather than the Court of Appeal affirming the trial court’s outcome, they overturned parts of the trial decision.
The most significant reversal of the trial court’s decision was in relation to the offence of communicating in a public place for the purpose of prostitution. The trial judge found that this provision violated sections 7 and 2(b) of the Charter. She based this decision largely on the idea that prostituted women may rush through screening a potential john on the street for fear of arrest, which diminishes their safety.
The Court of Appeal overturned the trial judge’s decision on this point and upheld the criminalization of communicating as constitutional. Interestingly, the Court of Appeal found that the evidence at trial contradicted the notion that attempting to screen a john for potential future violence was an effective safety technique. They pointed out that it is entirely likely that a john may seem safe at first, but turn violent later, and that a prostituted woman may go with a potential john even if she feels unsafe because she is desperate for money.
The Court of Appeal further held that the trial judge had no ability to reconsider whether the communication provision was an unjustifiable violation of the section 2(b) Charter right to freedom of expression because the Supreme Court of Canada had previously ruled that it was not. The trial judge’s finding of a violation of freedom of expression was also overturned.
This means that the communicating offence is left in place exactly as it was before the case started. Both prostituted women and johns will continue to be criminalized for communicating for the purpose of prostitution in public.
The trial judge had ruled that criminalizing living on the avails of prostitution was a violation of section 7 of the Charter and must be struck down. The Court of Appeal agreed that the provision was a violation of this right, but decided it was not necessary to strike it down. Instead, they added the words “in circumstances of exploitation” to the living on the avails provision. That means this provision still stands, and will continue to criminalize people who live off a prostitute’s earnings in circumstances of exploitation.
This changes very little. Case law had already interpreted this provision to apply only to people who “live parasitically off a prostitute’s earnings” so this law has never been applied to helpful book-keepers and supportive spouses. This simply inserts words into the provision that confirms what has always happened in practice.
Finally, the Court of Appeal upheld the trial judge’s decision that criminalizing brothels was a violation of section 7 of the Charter and struck it down. This aspect of the judgment will create a significant change in Canadian law if this decision stands.
What does this judgment mean?
There are no immediate practical effects of this judgment. First, it is important to remember that this decision only applies in Ontario – the Ontario Court of Appeal has no ability to change the law for the rest of Canada.
Second, the Court of Appeal suspended the declaration of invalidity of the brothel provision for 12 months and the reading in of “circumstances of exploitation” in the living on the avails provision for 1 month so that Parliament has time to enact new legislation in response.
Third, it is important to keep in mind that this decision will not be the final word on the prostitution laws of Canada. The government will undoubtedly appeal this judgment to the Supreme Court of Canada. In addition, Parliament could enact new prostitution laws either before or after this case is heard in the Supreme Court of Canada, which will overrule the courts’ decisions.
My overall impression of the Court of Appeal judgment is that it just sort of misses the point. The Court acknowledged that, “prostitution is inherently dangerous in virtually any circumstance” yet the entire judgment presumes that since prostitution is legal, it can and must continue to exist. They conclude that the best way to reduce danger to prostituted women is to move prostitution behind closed doors.
In some ways I’m not surprised by this. Last June, when the Court was hearing oral arguments from the applicants’ counsel Alan Young, one of the judges asked him whether it would be acceptable to his clients to leave street prostitution criminalized and decriminalize brothels. He said yes, and explained that the heart of this case was the bawdy house provision. This rare moment of honesty revealed that Young and his clients do not care about the women on the street, despite the fact that they use the memories of Pickton’s victims both in the courtroom and in the public. That Young is describing an appeal outcome that continues to criminalize street prostitution as a victory is further evidence of this.
But the Court’s conclusion that women are safer indoors is problematic on a number of levels. It’s hard to understand why the Court recognized that screening men on the street is not always an effective safety tool, but could not recognize that safety techniques used in brothels are not always effective either. The trial record was full of evidence from prostituted women who spoke of violence they’d experienced indoors and from other countries that showed increases in child prostitution, trafficking, and links to organized crime following the legalization of brothels. After all, the street does not attack women, johns and pimps do – and a brothel doesn’t exist without johns and pimps.
The other strange part about this conclusion is that the Court acknowledged that the evidence demonstrated that women prostituted on the street do not move indoors, even if it’s legal. The record from other countries that legalized brothels showed that there was no movement from the street to brothels following decriminalization. There are many reasons for this. An obvious one is that brothels won’t let women in who struggle with mental illness, addiction, or have other health problems. Another is that many women prefer prostituting on the street because they have more control than in a brothel where the manager negotiates with johns on their behalf.
Despite all this, I still think the largest elephant in the room is the complete erasure of johns’ prostitution behaviour from this discussion. The brothel provision criminalizes men who are found in a brothel. The communicating offence criminalizes men who communicate for the purpose of prostitution in public. Striking down these provisions in whole would decriminalize johns as well – a concerning prospect given that the prostitution industry exists because johns create a demand for it. As one of the controlling factors of prostitution, any discussion of prostitution laws should address whether johns have a legal right to purchase and use prostituted women.
I share the hope that others have seen in the following statement from the court:
“We agree that a modern, comprehensive legislative scheme dealing with prostitution could reflect the values of dignity and equality, but that is not the legislative scheme currently in place.“
We should all be holding Parliament responsible for enacting new legislation that will aim to eliminate prostitution by criminalizing johns who choose to purchase sex and pimps who choose to exploit others for profit, while decriminalizing prostituted persons and giving them the help they need to exit prostitution.
 Section 7 of the Charter state that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 Section 2(b) of the Charter states that everyone has the right to the fundamental freedom of expression.
 Paragraph 312
 Paragraph 117
 Paragraph 183.