The Ontario Court of Appeal released its much anticipated judgment on the legality of Canada’s prostitution laws yesterday in the decision of R. v. Bedford.
Predicated on the rights of sex workers to ply their trade in an environment that does not jeopardize their constitutional right to security of the person, the case succeeded in overturning two of the three central pillars of the Criminal Code’s anti-prostitution sections.
Provisions prohibiting “common bawdy houses” (what non-lawyers might more commonly refer to politely as brothels) have been declared unconstitutional with the government being granted a one-year reprieve to try its hand at drafting a revised section that would comply with constitutional principles. The language of the Court of Appeal seemed to hint that while a woman working solo in her own residence could never run afoul of bawdy house legislation, the government might be able to draft non-offending legislation that targeted larger commercial operations and there is little doubt that where criminalization fails, municipal regulation enjoys a broad authority to fill the gap.
Muddying the waters further, Canada’s “living off the avails of prostitution” provisions have been substantially altered by the reading-in of a proviso requiring the crown to prove “circumstances of exploitation”. This modification opens the door to legitimate work in the sex trade for body guards, drivers, screeners, administrators and other ancillary duties that could improve the safety of women who employ such services. Clearly the Court wishes to continue to criminalize “pimping” by reading in “exploitation” though I wonder what kind of evidence prosecutors will be required to produce to establish such circumstances beyond a reasonable doubt. The line between exploitive pimp and hard-working “booking agent” may be difficult to draw in the sterile walls of a courtroom.
Somewhat perversely, in the area in which women are arguably most in need of protection — the common street-walker — the law prohibiting communicating for the purposes of prostitution was upheld and remains in full force.
The combined effect of this decision is to make the sex trade industry significantly safer and lawful for those fortunate enough to be operating in the ‘higher-end’ fringes while doing little to protect the drug/alcohol-addicted women who turn to street prostitution in desperation. One might reasonably question whether – on a practical level – this decision will have any significant impact on the operation of the sex trade in Canadian cities. As the “personal pages” of any tabloid broadsheet or the backrooms of suburban massage parlours will tell you, escort services and brothels have already operated with little police molestation for decades. Thus, the fears expressed by many that the Court has turned on the “Red Light” on Ontario are likely overblown. A date with the Supreme Court in Ottawa seems almost inevitable.