Following the landmark ruling on September 28, 2010, by Ontario’s Superior Court Justice Susan Himel, which struck down various sections of the Criminal Code of Canada dealing with prostitution (ss. 210, 212(1)(j) and 213(1)(c)) because of safety and security concerns to sex trade workers, and effectively decriminalized prostitution in Ontario, another case in British Columbia would like to follow suit.
The British Columbia Court of Appeal ruled on Tuesday October 12, 2010, that a former sex worker and the Downtown Eastside Sex Workers United against Violence Society (a lobby group representing sex trade workers), can challenge the law provisions dealing with prostitution (operating a bawdy house, communicating in public to sell sex or living off the avails of prostitution), alleging that they violate ss. 2(b), 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms and are therefore of no force and effect.
The Appeal court set aside a lower court’s conclusion that the two groups didn't have standing to challenge adult prostitution laws because only active sex workers could be named in the action.
It was ruled that although the former sex worker and the lobby group lack private interest standing, they do meet the criteria for public interest standing to challenge the constitutional validity of the provisions in issue, stating:
the appellants have framed their pleadings to advance their thesis that rights assured by ss. 2(b), 2(d), 7 and 15 of the Charter of Rights and Freedoms are infringed by the impugned provisions. This broad and comprehensive systemic challenge meets the criteria for public interest standing."
Consequently, sex trade workers in BC will also have their day in court and hope to be as successful as their counterparts in Ontario. However, the federal government may appeal the BC ruling to prevent it from going forward.
So what now?
Federal Justice Minister Rob Nicholson recently stated that instead of considering the recent Ontario ruling in Parliament, which is normal procedure when a judge strikes down a law (in which Parliament has jurisdiction) under the Charter, the federal government has decided to appeal the court ruling. The government has long opposed the constitutional challenge to prostitution laws, arguing that the present Criminal Code provisions should be upheld. The Ontario government will participate in the appeal as an intervener in the case.
According to a report in The Globe and Mail, a deal was reached and confirmed by Superior Court Justice Susan Himel to delay the effects of the Ontario case and allow an appeal. Alan Young, the lawyer acting on behalf of Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, has reached an agreement with the Crown which will extend until November 28, 2010 the Ontario judge’s stay beyond the original 30 days, delaying implementation of her ruling, if the Crown takes certain steps to expedite the case. The goal is to get the matter more quickly before the Supreme Court. He expects to do so within two years.
That was the plan from day one,” Young said. “A case of this significance can’t be left to the lower courts.” Prof. Young further stated, in an ideal world, the federal government would have responded to Judge Himel’s ruling by repealing the existing provisions and working on law-reform measures to address the safety and security concerns she raised."
Young has already stated that he will oppose any further delays.
Many stakeholders, such as sex trade workers, police and politicians, have expressed confusion on the application and enforcement of the law during the stay. The Windsor Star indicated that Windsor police have decided that the state of the law remains the same during the stay of the judgment and are enforcing it; they will continue to charge suspected hookers, johns and pimps despite the court ruling.
Surely this confusion is another excellent reason to make sure that the appeal proceedings move ahead as quickly as possible.
The larger issue though—and the new case out of BC makes it clear that it is an issue of national import—is the interaction among the judiciary, the government and the Constitution. Ontario’s Superior Court of Justice has decided that provisions of a federal statute (the Criminal Code of Canada) are contrary to the Constitution (specifically, the Charter of Rights and Freedoms). In most cases, this would mean that the government would have to take the law back to the drawing board and draft new provisions that don’t offend the Charter, or simply remove the provisions from the law. In this case, however, the government is arguing that limiting the practice of prostitution—or at least several of the effects of it—doesn’t in fact offend the Charter, because such limits are “demonstrably justified in a free and democratic society”.
These words are tricky, and I can’t help but return to Justice Himel’s claim that, “the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.” In other words, the law as it stands actually causes more harm to sex workers than it does to the general public. This is quite the opposite of the intended purpose of laws.
Is it worth the government’s time and taxpayers’ money to wage court challenges to activities that might be better dealt with by amending the law, all while leaving the law in disarray until the thing is settled? Is it worth the time and money to defend a law that endangers more people than it offends? Alan Young, the counsel for the Ontario complainants, hopes the case will reach the Supreme Court within two years. Surely the justice minister recognizes that this time frame is possible or likely. Drafting and introducing amendments to the Criminal Code could take place within months or even weeks. During the time it takes for the case to reach the Court and for the Court to decide, will any meaningful legal action be taken to protect sex workers from the dangers they face?
Prostitution is a political issue, rightly for Parliament (as representatives of the people) to decide, but the government has chosen instead to take the decision away from Parliament and away from the people. Remember, the last time the Supreme Court made a significant decision on the prostitution-related laws was 20 years ago. Much has changed since then, and the government shouldn’t be so sure that it can “demonstrably justify” the current law. That is unfair to Parliament, Canadians and particularly the sex workers caught in the middle. This law deserves another look, not another delay.