Cosh called it

Back in 2007, Colby Cosh predicted the Ontario Superior Court of Justice would rule that Canadian laws against prostitution were unconstitutional. Yesterday, it did:

An Ontario court has struck down several key provisions in Canada’s anti-prostitution laws, saying they are dangerous to sex-trade workers.
A ruling by the Ontario Superior Court of Justice said the laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade “are not in accord with the principles of fundamental justice.”
“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 wrote her in 131-page decision, which struck down those provisions.
“I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.”
[…]
Young said the case was based on the fact that the provisions the court struck down compromised the safety of sex workers. For instance, the prohibition on communicating for the purpose of prostitution prevented sex workers from screening their clients, while the provision against operating a bawdy house prevented them from moving their business off the streets, where it is more dangerous.

Via @colbycosh. Full ruling here. The Federal government plans to appeal, but I suspect the Supreme Court of Canada would find Cosh’s 2007 argument quite persuasive:

Look past the archaic, euphemistic language in the Code. What does it mean to ban “bawdy-houses”? It means whores cannot organize a brothel where they can look out for one another and combine resources to buy medical care, security or insurance. What does the proscription against “living on the avails” mean? That a prostitute must work alone, shielded from the eyes of the law, unable to get bank credit or regularize her tax status or, hell, buy an RRSP if she wants one. What do the rules against “communicating” for the purposes of prostitution mean? It means most hookers have to do business through the window of a car, which gives them seconds to size up their customers, or over the phone, which hardly lets them do so at all.
As last year’s Senate justice committee report on prostitution noted, at least 79 sex workers were murdered on the job in Canada from1994 to 2003, and that figure doesn’t count the dozens of deaths allegedly attributable to Robert Pickton, nor does it include any of the 80-plus missing and murdered women whose cases are being investigated by Edmonton’s Project KARE task force. 85% of the known victims were killed by clients. Despite its tepid recommendations, the report concedes that even unregulated off-street prostitution, of the sort specifically targeted by the Criminal Code, is safer than street hooking. It contains damning data suggesting that the adoption of Sec. 213 coincided with an exponential increase in fatal violence among prostitutes.
Put it all together, and it is hard to disagree with SPOC’s spokeswomen when they accuse Canada of imposing a “death penalty” for prostitution. What pretended social gain from keeping the trade out of sight, out of mind and on the run can outweigh that?

The Toronto Star has a useful Q&A explaining the effects of the ruling:

Q: What does the ruling allow sex workers to do that they previously couldn’t?
A: They can work indoors without fear of being charged with operating a common bawdy house. They can also engage in conversations with customers on the street, as long as they are not impeding traffic or harassing pedestrians. And they can hire accountants, drivers and bodyguards without exposing them to the possibility of being charged with living on the avails of prostitution.
Q: Does this mean a brothel can open up in my neighbourhood?
A: It’s possible, although unlikely. Other laws will probably come into play here. There are other ways for prostitution to be regulated outside of the Criminal Code, including municipal zoning. A residential area could be zoned to prohibit any kind of commercial enterprise, including sex work, for instance. Q: What does the ruling allow sex workers to do that they previously couldn’t?
A: They can work indoors without fear of being charged with operating a common bawdy house. They can also engage in conversations with customers on the street, as long as they are not impeding traffic or harassing pedestrians. And they can hire accountants, drivers and bodyguards without exposing them to the possibility of being charged with living on the avails of prostitution.
Q: Does this mean a brothel can open up in my neighbourhood?
A: It’s possible, although unlikely. Other laws will probably come into play here. There are other ways for prostitution to be regulated outside of the Criminal Code, including municipal zoning. A residential area could be zoned to prohibit any kind of commercial enterprise, including sex work, for instance.

(Via Skippy, who has a very good post, with some possibly NSFW pictures)

6 thoughts on “Cosh called it

  1. Peter says:

    Those Q and A’s from the Star hint that, if the decision holds up, we’re headed towards a quintessentially Canadian result: Legalization and enlightenment will roar in triumphantly riding the Charter and then every municipality in the land will try to use zoning laws to make sure it never happens on their turf. I’ve been wondering how many municipal legal departments are working overtime this week.
    The largely positive reaction from both sides of the blogosphere (but not the country at large) is interesting, but it also demonstrates how we all tend to lean heavily on stereotypes and illusions about prostitution. It’s not surprising after the Pickton horrors that the focus is on the safety of prostitutes, but I am struck by how many in the “legalize” camp seem to envision a world of healthy, safe career girls with pensions and benefits, etc. If traditionalists naively believe prostitution can be eradicated by the criminal law, these progressives seem to be under the delusion that decriminalization will oust organized crime and lead to respectability and “just another business”. Let’s see how many Fortune 500 companies diversify into this trade.
    I imagine a poll would show considerable support for the question: “Do you think bawdy houses should be legalized?” I’d probably answer yes too. But then what would happen when the follow-up quesion was “Would you support licensing one in your neighbourhood?”? I wonder how Judge Himel would deal with the constitutionality of zoning, advertising and licensing restrictions that don’t apply to drycleaners and corner stores.

  2. Andrew says:

    It’s hard to see how this decision’s rationale could be anything but troubling.
    It is extremely unfortunate that prostitutes throughout Canada have been attacked and murdered over the past decade, and that working in an illegal industry subjects them to that sort of increased likelihood of violence – but what the expressed rationale doesn’t seem to address is the fact that the same could be said of persons working within most illegal industries.
    I suspect that if we were to consider the number of drug-industry-related fatalities in a given year or decades, they would prove equally horrifying; that said, the fact that illegal industries tend towards internal murderous violence is not, in and of itself, a reason to cease the criminalization of industries judged problematic.
    I would be genuinely interested to hear from those in favour of the ruling, as to how they suspect this will impact other proscribed industries.

  3. Ran says:

    Andrew,
    I hear you – but how things reach the market once “legal” plays a role in safety as well. Alcohol is “legal” – but don’t try distilling your own, or selling your own, or step on mob or Big Guv toes by making your own available. They *will* come to your door with loaded guns.
    It is always about control. Where a gal today faces risk, she will face it tomorrow if she doesn’t “conform”. So much for “progress.”

  4. Andrew says:

    Ran,
    Apologies for any impoliteness, but I am bound to say that your response is somewhat impenetrable, and doesn’t seem to offer a thesis, let alone an answer.
    Alcohol, as an industry, and in its current incarnation, is an inapt analogy. You argue that government regulation of private encroachment on the industry is in and of itself violence – maybe so, maybe not, but entirely irrelevant.
    The problem with the court’s ruling would appear at first glance to be the fact that all criminal industries will, by the very fact of their illegality, prevent participants from ensuring safe work environments. This is as true for drug mules and street dealers as it is for prostitutes. While admittedly unfortunate, this is a necessary and unavoidable result of the decision to prevent certain actions from public consumption.
    Put simply, you absolutely cannot make an industry illegal, without also necessarily preventing its participants from seeking legal redress and normal business protections.
    The basic question is this: if we accept that the potential violence to which prostitutes are subject represents sufficient cause, in and of itself, to declare the prohibition invalid, how are we to maintain a prohibition against the more noxious criminal activities (opium trafficking, for instance), when the low-level participants in these industries are often subject to equal or worse levels of violence (see hand-gun-related gang fatalities in Toronto alone, by way of example).
    Simply: how can you enforce any prohibition, when the lack of civil protections that necessarily attends on prohibition is considered sufficient grounds for overturning it.

  5. Ran says:

    Andrew, with respect, your premises are faulty – thus the disconnect.
    There is indeed, as you point out, a lack of civil protections today … but “legalizing” the industry is going to protect no-one in the long-run, because – pardon the appearance of a pun – the gubmint will simply operate or allow the mob to a protection racket. It’s not a pun, sadly.
    Legal redress? Normal business protections? Stripping as an industry is totally “legal” – according to your logic, it’s a jolly fine career. Not. The clubs are mob, the women’s tips and pay creamed-off, they are abused and treated badly. Free-lancers don’t dance. Do as I did – go to a club and ask a gal or five how they like the job. Look at the pancake over the bruises and the needle marks between the fingers.
    Nevada. Holland.
    Come back and tell us what a wonderful world for hookers will arrive once we remove the threat of “potential violence to which prostitutes are subject.”
    Thesis: A sound argument requires valid premises and established data.

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