Decision coming on March 26 from Ontario Court of Appeal

Hey everyone, I've just received word that we'll be receiving the decision on the Bedford et al case from the Ontario Court of Appeal on Monday, March 26 at 9am. Stay tuned for more details, and fingers crossed!

That's great news... it's been a long time coming. Let's all hope for the best!

I do hope this motion passes. It would be a good step towards Canada becoming more accepting of this lifestyle.

None of the arguements against it make any sense. Especially any anti-brothel arguements. I really doubt that from the street any brothel looks any different from any strip club. In fact, a brothel would probably be more discreet.

I do hope this motion passes. It would be a good step towards Canada becoming more accepting of this lifestyle.

None of the arguments against it make any sense. Especially any anti-brothel arguments. I really doubt that from the street any brothel looks any different from any strip club. In fact, a brothel would probably be more discreet.

I glad you feel the way I do about this but I afraid it's too close to call.

As the article says: "Prime Minister Stephen Harper has indicated previously that he would fight as far necessary to uphold the laws." (he does have a majority Government) and "Federal Crown counsel Michael Morris alleged that Judge Himel misunderstood the significance of evidence, paid heed to witnesses who didn't know what they were talking about and erroneously allowed herself to be drawn into a policy debate that belongs exclusively in Parliament"

There is still a lot of misunderstanding and stigma associated with this in North America. I've been to lots of hotels overseas where asking directions to the nearest brothel wouldn't raise any more eyebrows than asking directions to the nearest store to buy a pack of cigarettes. Similarly, on my way into the hotel the Concierge would ask if I would like them to "arrange" company for the rest of the evening as casually as they would ask if I want them to summon a taxi on my way out.

Of course we will know Monday but even if the ruling is upheld I'm afraid the Government may take it all the way to the Supreme Court of Canada, so it could be a long road yet.

If the laws are permanently over turned at some point I for one don't believe the sky is going to fall as a result.

So on Monday we only get to learn if the battle is lost or continues - I be quite surprised if the Government conceded and declared they won't appeal it further.

It's been clear from the time Justice Himel released her decision that this would end up at the Supreme Court of Canada, regardless of the outcome at the Ontario Court of Appeal. So, yes, this is just one step along the way.

While the Harper government opposes the Himel decision, there's no certainty that the SCC will. Indeed, the SCC is historically reluctant to overturn Appeal decisions. The Harper government has shown a reluctance to abide by SCC recommendations or to accept its advice. What they will do if the SCC upholds Himel is difficult to say since they pay an enormous amount of attention to poll results and, so far, the polls have overwhelmingly been in favour of the direction the Himel decision leads.

It's also important to note that police departments and the RCMP across the country show little interest in arresting women who work on the streets. When law enforcement agents choose not to enforce laws, the longevity of new legislation that would essentially replicate current laws may be limited. However, that doesn't mean that street-based sex workers are safer than they were when they were more likely to be charged.

Comes out at 11 pm.

I am glad to see this finally, but it's not finished yet. It probably winds up in the Supreme court, but it does moves the goal posts.

The Ontario Court Of Appeal has struck down the ban on brothels, but has upheld the ban on soliciting for selling sex. Furthermore, they have given the Federal Government one year to re-write the laws concerning prostitution in this country, if the Government chooses to do so.

Just a few legal questions here: Considering that the Court Of Appeal has given the Federal Government a year to rewrite Canada's prostitution laws, must the Government abide by the ruling, or can it seek to write laws that will make prostitution 100% illegal in Canada?

Given that the Supreme Court is unlikely to overturn a ruling by The Court Of Appeal, what does the present decision mean for the rest of Canada at the moment? Are the laws concerning the legality of brothels now in a state of limbo in other provinces, and for how long?

Just a few legal questions here: Considering that the Court Of Appeal has given the Federal Government a year to rewrite Canada's prostitution laws, must the Government abide by the ruling, or can it seek to write laws that will make prostitution 100% illegal in Canada?

 

Given that the Supreme Court is unlikely to overturn a ruling by The Court Of Appeal, what does the present decision mean for the rest of Canada at the moment? Are the laws concerning the legality of brothels now in a state of limbo in other provinces, and for how long?

The government can write laws that will make prostitution completely illegal in Canada, yes. But that would be a major change in policy since it has never been illegal to be a prostitute or to engage in prostitution within certain limits. The Ontario Court of Appeal (OCOA) is very clear that new legislation must uphold the Charter rights of prostitutes.

This is important because the federal government had argued that it had no obligation to protect prostitutes because they were working in an industry known to be dangerous to workers' safety and well-being. The OCOA rejected this argument, saying that it "implies that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal, enterprises."

The OCOA decision applies only to Ontario: the Appeal court doesn't have jurisdiction over any other province. However, it's reasonable to expect that police and courts may be reluctant to prosecute women in, say, Alberta, for activities that would be legal in Ontario. There has already been a noticeable decline in the numbers of women charged with prostitution-related offenses in the last few years. No one has been charged with street solicitation in Vancouver in over three years, for example.

I haven't read the entire decision in detail, yet. It's 148 pages long. You can find it here.

I've read through the decision once. I'll just make a few general observations at this point.

Bawdy House and Living on the Avails:

Section 7 of the Charter:

Although today's decision was 3-2, the two dissenting opinions disagreed only about the Communication law. So the Bawdy House law and the law against Living on the Avails (the latter pending modification to apply only in exploitative relationships) have been found to be unconstitutional by all six justices who have been involved in Bedford v Canada so far:

Justice Himel in the Ontario Superior Court of Justice

Justices Doherty, Rosenberg, Feldman, MacPherson and Cronk in the Court of Appeal for Ontario

Conclusion: we can now put to bed all rhetoric about "one rogue judge".

Communication Law:

Section 2 (b) of the Charter:

Today's finding unanimously over-ruled Himel's previous finding regarding the unconstitutionality of the Communication Law in regards to freedom of expression (under Section 2 (b) of the Charter). Today's finding did not contradict the substance of Himel's finding - rather, today's decision was that since the issue here is the changed factual circumstances over the past 20 years, then technically it is the sole prerogative of the Supreme Court to consider overruling itself in relation to its findings in the Reference Case of 1990. Today's decision did not find that the factual grounds for appeal were insufficient to warrant a trip to the Supreme Court on this issue.

Section 7 of the Charter:

Somewhat paradoxically, the Communication Law was found to be constitutional (under Section 7 of the Charter) in today's 3-2 majority decision, with Doherty, Rosenberg, Feldman for the majority. MacPherson and Cronk vehemently dissented. The dissenters agreed with Himel's earlier finding that the Communication Law is unconstitutional. So to date, counting Himel, opinion on the Communication Law in Bedford v Canada stands at 3-3.

Overall, this is a well-written, closely reasoned decision. All except the section of the majority finding that deals with the Communication Law, which on initial reading seems to be transparently grasping at straws and completely divorced from the principles endorsed in the previous sections, endorsed by the same justices, regarding Bawdy House and Living on the Avails.

Fortunately, MacPherson, writing the bluntly dissenting opinion, effectively calls absolute bullshit on the majority finding which supports the Communication laws. Nebulous potential benefits towards the reduction of social nuissance, thinks MacPherson, do not trump trivial details like marginalized members of our society actually being murdered.

See you in the Supreme Court!

This news makes me happy. Yay Canada!

See you in the Supreme Court!

The federal government should thing long and carefully about taking this to the SCC, I think. With the great majority of this decision upholding Justice Himel, and the flimsy argument against keeping "communicating" as an offense, the SCC might well overturn that aspect of the OCOA decision, too, and rule that the communicating law is truly unconstitutional.

However.... sending this to the SCC buys time and prevents either major changes or messing around with the will-we/won't we considerations about new legislation. It's very clear that the courts are not going to tolerate legislation that violates the rights of Canadians even if those Canadians are prostitutes and other sex workers. Yay!

All day today, the responses on CBC radio Vancouver shows have been in favour of the Ontario decision. This, in the face of the ongoing inquiry into the police's inaction re: Picton, becomes a very strong public statement. The usual nay-sayers have been airing their views, without significant support from anyone else.

Susan Davis (who is Susie here) has been eloquent, clear, to the point and simply fantastic, as usual.

I'm really happy that OCOA is helping to move Canada into the 21st century, and that prostitutes are finally being recognized as people no less deserving of Charter rights like everyone else. :grin:

The federal government should thing long and carefully about taking this to the SCC, I think. With the great majority of this decision upholding Justice Himel, and the flimsy argument against keeping "communicating" as an offense, the SCC might well overturn that aspect of the OCOA decision, too, and rule that the communicating law is truly unconstitutional.

 

However.... sending this to the SCC buys time and prevents either major changes or messing around with the will-we/won't we considerations about new legislation. It's very clear that the courts are not going to tolerate legislation that violates the rights of Canadians even if those Canadians are prostitutes and other sex workers. Yay!

 

All day today, the responses on CBC radio Vancouver shows have been in favour of the Ontario decision. This, in the face of the ongoing inquiry into the police's inaction re: Picton, becomes a very strong public statement. The usual nay-sayers have been airing their views, without significant support from anyone else.

 

Susan Davis (who is Susie here) has been eloquent, clear, to the point and simply fantastic, as usual.

What could the Federal Government have to gain by sending this to the Supreme Court, aside from delaying the inevitable? Chances are good that the Supreme Court will uphold most if not all of the two lower court's findings. Moreover, as it stands right now, the decision is only binding in Ontario. If the case is heard by the Supreme Court, then its decision will automatically apply to Canada as a whole, which is great for all the other provinces and territories. I feel the Federal Government should just accept the ruling and act accordingly for the interests of all involved. My only concern stems from those anti-prostitution groups that are calling on the Government to enact a new law that would effectively make the buying and selling of sex illegal. Is that a real possibility, or something that would likely never come to fruition?

I personally do hope this is appealed to the SCC so that the ban on communicating will also be overturned.

Let's face it, this decision as WIT points out is not internally consistent in its logic.

Additionally the sex workers who are most at risk are those working the streets. Pickton's victims were all streetwalkers. The ban on communication endangers them the most as it forces them to work in the shadows and make quick decisions which all too often are fatally wrong.

If there are suddenly brothels there will still be streetwalkers as the brothels will most likely be regulated and require at least proof of a woman's identity. Not all women will want to give up their anonymity. Some streetwalkers are also drug users and may find difficulty working in a brothel. They will still be on the street and they will still be dying.

I didn't find this decision very encouraging at all from a basic human rights standpoint.

What could the Federal Government have to gain by sending this to the Supreme Court, aside from delaying the inevitable? Chances are good that the Supreme Court will uphold most if not all of the two lower court's findings. Moreover, as it stands right now, the decision is only binding in Ontario. If the case is heard by the Supreme Court, then its decision will automatically apply to Canada as a whole, which is great for all the other provinces and territories. I feel the Federal Government should just accept the ruling and act accordingly for the interests of all involved. My only concern stems from those anti-prostitution groups that are calling on the Government to enact a new law that would effectively make the buying and selling of sex illegal. Is that a real possibility, or something that would likely never come to fruition?

I agree with you, drlove. But I think the feds will appeal because they won't want to be seen, from their perspective, to roll over when the PM has been so emphatic about the prostitution laws. There's always the chance that, by the time the SCC makes a ruling, we may have a different government and they'll have to deal with the outcome of the SCC decision. Even if we're still bearing the burden of a Harper government, it's in their interests to delay things for as long as possible.

While the OCOA decision applies only to Ontario, it sets up other courts to make similar or related rulings in other provinces. Courts frequently refer to the reasoning and decisions rendered by other courts. And so, it is foreseeable that the OCOA decision may have effect across the country. As it is already, no one has been arrested for soliciting in public in Vancouver in more than three years and no independent paid companion has been charged with operating a bawdy house in a very long time. Massage parlors and micro brothels have been raided, however. Some of the massage parlors are operated by organized crime, here, but most are not. The micro brothels are usually run by Asians and staffed by women who are visiting Canada from China or Korea.

If there are suddenly brothels there will still be streetwalkers as the brothels will most likely be regulated and require at least proof of a woman's identity. Not all women will want to give up their anonymity. Some streetwalkers are also drug users and may find difficulty working in a brothel. They will still be on the street and they will still be dying.

While I understand that many people imagine a brothel to be something like the Chicken Ranch in Nevada or a Victorian brothel from some movie, that's not the reality. Legally speaking, thousands of brothels already operate all over the country, in every large city and in every neighbourhood of those cities. Most of these brothels are operated by independent paid companions who work alone, often from our own homes or from apartments we've rented to use as workspace.

While I don't consider myself to be running a brothel, I could be charged with keeping a common bawdy house because I "habitually" offer my companionship services in the same place to more than one client. Indeed, if a paid companion rents a hotel room and sees two or more gentlemen there, that room can be deemed to be a bawdy house.

The media is already giving time and space for people who want to frighten the public into imagining that busy houses full of prostitutes will be operating 24/7 in their neighbourhoods, endangering children's safety and attracting shady characters and a lot of crime, too. This is highly unlikely. While there are sex workers who do want to work together and perhaps open unambiguous brothels, most paid companions will continue to prefer to work as quietly and unobtrusively as possible. Some of us are eager to be able to work publicly. Plenty of us prefer privacy. Similarly, some of our visitors may be happy to attend at a well-known establishment, but I suspect that the majority will continue to prefer more discrete, confidential companionship.

The point of overturning the bawdy house laws is to give women in the sex trade choices about where they feel is safest for them to work. It also affords us the same privacy to engage in mutually consensual activities with other adults that the rest of the Canadian public enjoys.

Daniel Henry writes for CBC News, 26 Mar 2012:

http://www.cbc.ca/news/canada/windsor/story/2012/03/26/f-vp-henry-prostitution.html

There's always the chance that, by the time the SCC makes a ruling, we may have a different government and they'll have to deal with the outcome of the SCC decision.

One can only hope!

Based on the way the Bawdy-House issue is framed in the written decision, and reading between the lines - it is my impression that the Court's message to parliament is that if the Bawdy-House Law were rewritten to allow individuals to work out of their own premises (maybe with a support-person on staff, or perhaps two individuals working together?), that adjustment might be a sufficient remedy so as to bring the rest of the current Bawdy-House law into compliance with the Charter.

Such legislation could potentially leave larger brothels, or brothels operated by a third-party commercial entity, still illegal.

I emphasize that this is only my impression. No-one else seems to have mentioned this.

Some language from the majority decision (my bold):

http://www.ontariocourts.ca/decisions/2012/2012ONCA0186.pdf

Communicating

 

The majority also suggested that now that they had permitted prostitution indoors, that the need for street prostitution would diminish.

 

However, the minority judges felt the balance on this issue was wrong and that the evidence suggested that 10-20 per cent of prostitutes would continue to be on the street, even with the bawdy house provisions struck down.

 

What's more, they argued, those who engage in street activity are among the most vulnerable and require the greatest legal protection, which ought to include changing the laws about communication.

 

Many prostitutes, the minority decision said, "will stay on the streets because of coercion, insufficient resources, or lack of support networks." In addition, the law that prevents them from communicating with their clients to assess potential danger "will continue to drive street prostitutes to isolated, and potentially very dangerous, locations.

 

"All this implicates street prostitutes' personal safety and, in far too many cases, the fragile line between life and death."

 

It remains to be seen how this will all play out. If the government does not seek leave to appeal to the Supreme Court of Canada, the applicants have said that they may not try to take this case there themselves, which means this decision will remain binding in Ontario and have an influence across the country.

 

If the case is appealed, however, all issues will likely be up once again for consideration.[/indent]

I very much agree with this analysis. I think the court has presented both parties with a catch-22. The both won some and lost some and both risk losing if they appeal to the SSOC.

Based on the way the Bawdy-House issue is framed in the written decision, and reading between the lines - it is my impression that the Court's message to parliament is that if the Bawdy-House Law were rewritten to allow individuals to work out of their own premises (maybe with a support-person on staff, or perhaps two individuals working together?), that adjustment might be a sufficient remedy so as to bring the rest of the current Bawdy-House law into compliance with the Charter.

 

Such legislation could potentially leave larger brothels, or brothels operated by a third-party commercial entity, still illegal.

 

I emphasize that this is only my impression. No-one else seems to have mentioned this.

 

Some language from the majority decision (my bold):

 

[190] ... the objectives of the current bawdy-house provisions ... are rooted in English common law and relate to nuisance and affront to public decency ....

 

[172] ... we conclude that the bawdy-house prohibition is overbroad because it captures conduct that is unlikely to lead to the problems Parliament seeks to curtail.

In particular, the provisions prohibit a single prostitute operating discreetly by herself, in her own premises.

We also agree with the application judge that the impact of the bawdy-house prohibition is grossly disproportionate to the legislative objective, because the record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control...

 

[200] The wide definition of common bawdy-house under s. 197(1) of the Criminal Code includes not only

large establishments, which are likely to contribute to neighbourhood disruption and disorder

, but also single prostitutes working alone from their own homes....

 

[204]

We find the legislation is most significantly overbroad in its extension to the prostitute's own home for her own use

, a result of the 1907 amendment to the bawdy-house provisions....

a single person discreetly operating out of her own home by herself would be unlikely to cause most of the public health or safety problems to which the legislation is directed. Further, there was no suggestion that the broader public safety problems we identified are associated with a single person, operating by herself, in her own premises.

 

[217] We should not be taken as holding that any bawdy-house prohibition would be unconstitutional. It would be open to Parliament to draft a bawdy-house provision that is consistent with the modern values of human dignity and equality and is directed at specific pressing social problems, while also complying with the Charter ....

 

[218] ... we believe that it is possible to draft Charter-compliant legislation directed at bawdy-houses ...

 

http://www.ontariocourts.ca/decisions/2012/2012ONCA0186.pdf

This is a very interesting analysis. If the gov't behaved rationally (not a given for the Harper administration) they would not appeal the decision but make the changes alluded to above and claim they are banning the 'Chicken Ranch' style brothels that will so upset their image.

Overall I am still not satisfied that the safety of the prostitutes that will continue to work on the streets has been addressed and as such I do hope that the Bedford challengers take the risk and go the SSOC. Also if the bawdy houses are limited as suggested above then I think we will more or less see the same level of street prostitution as we do currently and I think we'll continue to see the same levels of violence that we are still seeing (e.g. the current serial killer of streetwalkers in Ottawa).

... Overall I am still not satisfied that the safety of the prostitutes that will continue to work on the streets has been addressed ...

The majority decision is a shocking travesty in this regard.

The dissenting opinion of MacPherson and Cronk states:

http://www.ontariocourts.ca/decisions/2012/2012ONCA0186.pdf

So, assuming that after whatever legal and legislative shenanigans remain to be gone through the bawdy-house law remains struck down, what do people think will actually happen?

Just because something's legal, it doesn't mean it's unregulated. Look at SCs, for example: yes, they exist, and they're overt, but that doesn't mean it's necessarily easy to open one. Last I looked, the Ottawa bylaws were constructed so as to make it pretty much impossible to open a new SC, so we're stuck with the existing ones that were grandfathered in.

I have no doubt that if brothels are legalized, a similar raft of hopelessly restrictive bylaws for licensing would arise. Many places might ban them entirely. Most would probably ban them from residential areas, or anywhere near schools or places of worship or youth clubs (and I'm sure there are others). I'm pretty sure you could make the rules come down to "sorry, there's nowhere suitable" without an explicit ban, if you chose. I can't imagine it'd take much effort.

And so you'll end up with a situation that's still much like what we have today; many independent ladies will be working out of residential properties (whether it's actually where they live or a dedicated incall) and, although they will no longer be doing anything wrong under criminal legislation, will still be looking at a hefty fine if caught. Which they probably won't be, unless they're careless.

So really, what will have changed?

I should add that I'm far less cynical about the changes to the living off the avails law, as that seems to improve things for pretty much everyone without much downside. But I just can't get all that excited about the bawdy-house law being struck down, I'm afraid. I hope I'm wrong...