SCC Strikes Down Prostitution Laws

December 20, 2013 7:12 AM

The Supreme Court of Canada has struck down Canada's prostitution laws saying that bans on street soliciting, brothels and people living off the avails of prostitution are arbitrary and create severe dangers for vulnerable women.

Link to judgment, a unanimous decision written by Chief Justice McLachlin.

B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C‑46, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter: s. 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

Said the court, "The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7 [of the Charter of Rights & Freedoms]. The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence."

posted by modernnomad (39 comments total)

The conversation will continue, however - the Chief Justice also went on to note that Parliament is not precluded from creating laws related to prostitution that do not violate the Charter in the same way:

"I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter. That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted. Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure — for example, permitting prostitutes to obtain the assistance of security personnel — might impact on the constitutionality of another measure — for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime."
posted by modernnomad at 7:18 AM on December 20, 2013

Nice!

In the US, this would probably be quite a controversial decision, thanks to the Moral Values Police. How is the Canadian public expected to react?
posted by zarq at 7:25 AM on December 20, 2013

How is the Canadian public expected to react?

It'll be a controversial decision here, too, for much the same reason.
posted by FishBike at 7:27 AM on December 20, 2013

Saturday's papers today: HARPER PROROGUES SUPREME COURT
posted by The Card Cheat at 7:28 AM on December 20, 2013 [6 favorites]

I think reactions will vary. Some will be like this but then others will be all this.
posted by Potomac Avenue at 7:38 AM on December 20, 2013 [13 favorites]

I have to say, this surprises me. Over the past few years, I've gotten used to the news out of Canada mostly showing it rushing headlong toward becoming USAjr.
posted by Thorzdad at 7:39 AM on December 20, 2013

Good. I wish the rights and safety of sex workers (including facilitating someone finding a different career if they so choose) were the focus of our laws on the matter.
posted by Dip Flash at 7:39 AM on December 20, 2013 [5 favorites]

I'm really sorry if Americans are starting to feel like the newest province with all the Canuck stuff on the Blue lately, but hey, at least this is better news than usual.
posted by maudlin at 7:40 AM on December 20, 2013 [1 favorite]

This is good news for protecting the safety of sex workers. Echoing Dip Flash, it would be good if it ran in tandem with efforts to allow then to exit the industry if they wanted.
posted by arcticseal at 7:47 AM on December 20, 2013

I'm really sorry if Americans are starting to feel like the newest province with all the Canuck stuff on the Blue lately

Is there anything more Canadian than apologizing for too much Canada news?

I mean, the non-USians put up with a very USA-centric set of topics over here all the time. No apology needed.

This looks like a good start for dealing with prostitution in a way that doesn't victimize the people doing it. It will be interesting to see where they go from here.
posted by emjaybee at 7:52 AM on December 20, 2013 [5 favorites]

I predict that this judgment will be roundly condemned by social conservatives, religious leaders, and organized crime.

On a serious note, I was not expecting a unanimous decision that all three provisions were found to violate the charter, especially with a majority of justices appointed by Harper, no less. I think it's a testament to how much it remains Chief Justice McLaughlin's court. I fear what will happen when she's gone.

"You cannot divorce the law from the consequences. It is essential to good judging that the rule be sensitive to consequences, and that judges, when they make rulings, give some thought to how they are going to play out." — Beverley McLaughlin
posted by [expletive deleted] at 7:54 AM on December 20, 2013 [3 favorites]

Holy shit! That's amazing! Good on the Supreme Court of Canada. Now hopefully there will be a movement toward bringing sex work out of the shadows, reducing stigma associated with it, and providing support and resources to protect those in sex work.
posted by jph at 7:54 AM on December 20, 2013 [1 favorite]

God bless that Supreme Court.
posted by Alvy Ampersand at 8:01 AM on December 20, 2013

Parliament is not precluded from creating laws related to prostitution that do not violate the Charter in the same way:

If, or more probable when, this happens, I can't help but wonder if they will continue to use the term "bawdy-house" in any new legislation.
posted by MCMikeNamara at 8:06 AM on December 20, 2013

I have to say, this surprises me. Over the past few years, I've gotten used to the news out of Canada mostly showing it rushing headlong toward becoming USAjr.

Living hear I've seen Tea Party "thinking" shit more and more. If this holds it would be nice if they move on to drugs next.

As for a reaction, I suspect that most Canadians will see it as a good think overall, with the loudest detractors pretending they represent the majority.
posted by juiceCake at 8:10 AM on December 20, 2013

It should be a requirement to have a card to be a john or you get preferential treatment if you are a registered john. Or you register with a certain brothel, get a background check and then are a member (heh) of that brothel club.

Yes it makes privacy tricky but hear me out - if you have a background check, accessible only to you, the police and the brothel, then the ladies' safety is prioritized. WSIB and all that.

I don't want to see Canada become a red-light district for human trafficking, while the johns have no responsibility in the matter.
posted by St. Peepsburg at 8:19 AM on December 20, 2013 [1 favorite]

Isn't "living off the avails" usually code for pimps? Afaik, all European countries outlaw pimping, specifically because pimps make prostitution dangerous, but most kept prostitution legal. Now brothels are frequently legal but regulated in Europe. Is the court's goal to force parlement to regulate brothels like in say Germany?
posted by jeffburdges at 8:25 AM on December 20, 2013

I'm really sorry if Americans are starting to feel like the newest province with all the Canuck stuff on the Blue lately, but hey, at least this is better news than usual.

No no no! It's fine.

God forbid we Americans see an example of a country act like functioning, rational adults...
posted by scaryblackdeath at 8:33 AM on December 20, 2013

Isn't "living off the avails" usually code for pimps?

From the ruling, [the law against living off the avails of prostitution is intended for pimps, but also bans] “legitimate drivers, managers, or bodyguards. . . accountants or receptionists.”
posted by justsomebodythatyouusedtoknow at 8:37 AM on December 20, 2013 [2 favorites]

Very cool news.
posted by brundlefly at 8:43 AM on December 20, 2013

Is the court's goal to force parlement to regulate brothels like in say Germany?

I don't know that the court had any specific outcome in mind - they've essentially kicked it back to Parliament to come up with a better law within the next year:

The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime. ... considering all the interests at stake, I conclude that the declaration of invalidity should be suspended for one year.


Parliament could conceivably just outright ban the exchange of sex for money by amending the Criminal Code, so long as any amendments are carefully crafted so as to not provoke further Charter challenges. With the current federal government, I very much doubt we'll be seeing legalised brothels anytime soon, at least not without further legal battles.
posted by iona at 8:47 AM on December 20, 2013

I have to say, this surprises me. Over the past few years, I've gotten used to the news out of Canada mostly showing it rushing headlong toward becoming USAjr.


The courts are essentially the one exception to that. I'm not saying the SCC (or lower courts) are super-lefties or anything (not even close), but they're reasonably strict about avoiding politics even when it goes against the government's agenda. Much like the rulings about Insite (injection sites) and the lower courts ruling against mandatory minimums for certain gun crimes (weird ones), there's been a pretty strong push towards evidence-based governing being required by the courts.

SO HAPPY!
posted by Lemurrhea at 9:07 AM on December 20, 2013 [1 favorite]

Indeed, let's remember that this was a unanimous decision - even the justices appointed by Stephen Harper were on board. The SCC is simply not politicized in the same way that SCOTUS is.
posted by modernnomad at 9:16 AM on December 20, 2013

Good for you, Canada.

Is there any reasonable argument against legalization that doesn't boil down to "ewwwww" or "Jesus says no" or "Won't somebody think of the children?". I still haven't encountered it.
posted by Justinian at 12:16 PM on December 20, 2013

Is there any reasonable argument against legalization that doesn't boil down to "ewwwww" or "Jesus says no" or "Won't somebody think of the children?". I still haven't encountered it.

I'm pro-, because I think legalization would protect victims of human trafficking, but I think that many have concerns that it would create a greater market for human trafficking and exploitation.
posted by capricorn at 12:20 PM on December 20, 2013 [2 favorites]

The SCC is simply not politicized in the same way that SCOTUS is.

Largely because there's no grilling of candidates in front of Parliament. There have been some rule changes in the last few years that make the appointment process even less political (IMHO). I'm sure there's a wikipedia article... yes.
posted by feckless fecal fear mongering at 12:22 PM on December 20, 2013

Capricorn: I suppose. I don't consider that particularly reasonable once you examine it but I recognize there is more than a whiff of No True Scotsman about my position. So I will retract what I said and leave it at "good for you, Canada."
posted by Justinian at 12:36 PM on December 20, 2013

I predict that this judgment will be roundly condemned by social conservatives, religious leaders, and organized crime.


On the contrary, opposition comes from women's groups, perhaps the more radically left leaning ones.

And, as noted in the judgement itself, pimps and other organized criminals, (in particular, bike gangs) will benefit greatly from this decision. How do you think the 'body guards' are currently employed?
posted by not_that_epiphanius at 1:16 PM on December 20, 2013

In the short term, possibly. In the long term were it to remain legal it should harm those groups' prospects greatly just as repealing prohibition in the USA harmed organized crime's income from the alcohol trade.
posted by Justinian at 1:38 PM on December 20, 2013

God bless that Supreme Court.

We would like to keep our Supreme Court free from God and his dubious blessings.
posted by anothermug at 4:11 PM on December 20, 2013 [8 favorites]

I should also clarify for those that don't realize, prostitution is ALREADY a legal activity in Canada. This decision does not change the legal status of prostitution itself. Rather, it changes the status of certain activities related to prostitution, described in the pull quote.
posted by modernnomad at 5:41 PM on December 20, 2013 [4 favorites]

Sure, prior to this decision, prostitution was not illegal on the books. In practice, however, federal (criminal), provincial, and municipal laws basically prohibited all of the activities associated with sex work.

The systematic inequality that creates the most harmful forms of prostitution (survival sex work) will not be remedied by merely ruling these laws unconstitutional. However, by striking these laws down, the SCC is effectively opening the door to lawful regulation. The question is how governments will respond. Parliament is not the only player here. Provincial and municipal governments also have a very important role to play in responding to prostitution's associated harms.

My hope is that the legislative response minimizes exploitation, maximizes harm reduction, and actively promotes the equality and dignity of sex workers. Governments must take positive steps to ensure that sex workers have sufficient social and economic support so that their participation in the industry is non-coercive and that opportunities for market exist are available.
posted by ageispolis at 7:46 PM on December 20, 2013 [3 favorites]

And, as noted in the judgement itself, pimps and other organized criminals, (in particular, bike gangs) will benefit greatly from this decision. How do you think the 'body guards' are currently employed?

Organized crime is way better than the disorganized kind, in my own personal opinion.
posted by save alive nothing that breatheth at 8:11 PM on December 20, 2013

St. Peepsburg: "It should be a requirement to have a card to be a john or you get preferential treatment if you are a registered john. Or you register with a certain brothel, get a background check and then are a member (heh) of that brothel club."

Many (all?) strip clubs already scan your driver's licenses so the infrastructure is already in place that would allow one to track and ban clients.
posted by Mitheral at 8:29 PM on December 20, 2013

On the contrary, opposition comes from women's groups, perhaps the more radically left leaning ones.

That Google search doesn't exactly support this premise. I never said no left-leaning women's groups would be opposed. I just said the religious right would oppose it with a unified voice. Also, I think this is a blow to organized crime in Canada, which relies on prostitution for much of its income. I followed every link where Canadian women were arguing against legal prostitution on the first four pages, and as far as I can tell, with two exceptions are white, straight, cisgendered Christians with ties to the conservative party. The one who dominates the front page is Joy Smith, a prairie Conservative who infamously had a teary breakdown on the floor of Parliament in 2005, predicting the destruction of marriage if gay people get equal rights. She also seems tied to a lot of the other women in one way or the other. She seems to be the primary legislative force behind "Nordic Model" laws in Canada.

Next there is Lorna Dueck, a televangelist, with an op-ed titled "Faith groups oppose legal prostitution because they care about women’s lives". After that we have Hope for the Sold, a project working with an explicitly "non-Sectarian" (read: evangelical) Christian organization that fights the sex industry as a whole, lumping everything together as "sex trafficking". The about page describes their origin at a "leadership conference" in Atlanta, GA.

Krystal Alarcon writing in the Tyee is the first woman of colour (of Philippine origin), and the first who appears to be on the left side of the spectrum. She advocates for Canada to adopt the Nordic Model. Also, we have a statement from AWAN, a now apparently defunct Aboriginal Women's organization arguing for the Nordic Model. The article in the Tyee is recent, but AWAN's domain has expired, and now has ads for prostitutes on the front page. The original content seems to still be there, probably for SEO purposes.

Next up, we have the execrable REAL Women of Canada, who I absolutely will not link to, and also an article in a conservative Catholic paper lionizing them and the federal Conservatives. We also have Miss Canada 2011 Tara Teng, graduate of Trinity Western who interned for Joy Smith who now works with Hope for the Sold.

It's fair to say that the women's movement in Canada is split on this, and the left in general. Rabble.ca has a good roundup of Twitter reactions. For what it's worth, the reaction of the social justice crowd in my circle of friends has been overwhelmingly positive.

And, as noted in the judgement itself, pimps and other organized criminals, (in particular, bike gangs) will benefit greatly from this decision. How do you think the 'body guards' are currently employed?

That's quite a stretch. The decision does acknowledge that striking down the "avails of prostitution" clause increases the evidentiary burden when attempting to prosecute pimps, but the court also says that this potential harm is vastly outweighed by the benefit of allowing them to hire actual bodyguards, drivers, receptionists, etc.

Personally, I'm with Pivot on this one. They do great work, I know people who've worked for them, and I see the great work they've done time and again with such limited resources. Today they delivered a landmark ruling that explicitly puts the rights of sex workers to security of person in its rightful place as the standard by which prostitution laws will be judged.
posted by [expletive deleted] at 8:30 PM on December 20, 2013 [5 favorites]

We would like to keep our Supreme Court free from God and his dubious blessings.

Yes, yes we would. We also like to make with the jokes.
posted by Alvy Ampersand at 10:23 PM on December 20, 2013

I appreciate your response, [expletive]. I felt that the conversation was going entirely one way, and made a response (from work) in perhaps 20 seconds. I just don't have the resources, time, in particular, to make a better case. But my own social justice crowd, centered around Rape Relief in Vancouver, is opposed to the decision, and has organized opposition to this direction as the case progressed through the courts. I wish I could get someone better equipped than I to present that case.
posted by not_that_epiphanius at 10:02 AM on December 21, 2013

not_that_epiphanius: From what I can tell, Rape Relief's position is that, as they say, any law making it illegal for a woman to engage in prostitution should be removed but that laws making it illegal for men to engage the services of a prostitute should be maintained or enacted. Which strikes me as entirely problematic.

So the reason groups like Rape Relief oppose this decision is not because there is something in the decision itself which they find problematic, or that they think other types of prostitution should be legal for those involved but that laws against street prostitution are okay because street prostitution inherently has more of an issue with trafficking or abuse, but because they would oppose any decision which legalizes any form of prostitution unless it is only legalizing the selling side of the equation and not the buying side. Basically, they don't want women arrested for engaging in sex work but they do want men arrested for engaging the services of a sex worker.
posted by Justinian at 9:59 AM on December 22, 2013

Giorgio Mammoliti reiterates his suggestion to restrict prostitution to Toronto Island.
posted by frimble at 5:41 AM on December 26, 2013