A Superior Court justice gutted the federal prostitution law in Ontario on Tuesday, allowing sex-trade workers to solicit customers openly and paving the way for judges in other provinces to follow suit.
Justice Susan Himel struck down all three Criminal Code provisions that had been challenged – communicating for the purposes of prostitution, pimping and operating a common bawdy house.
The decision will take effect in 30 days unless Crown lawyers return with arguments that are strong enough to persuade her to grant a further delay, Judge Himel said.
Her landmark ruling drew immediate fire in Ottawa, which has little time to regroup and battle the judgment. A domino effect of judicial decisions could quickly topple prostitution laws across Canada, as happened several years ago with prohibitions against gay marriage.
Federal Justice Minister Rob Nicholson asserted that it is the government’s prerogative to decide how best to protect prostitutes and the communities in which they ply their trade. “The Government is very concerned about the Superior Court’s decision and is seriously considering an appeal,” he said in a statement.
Ontario Premier Dalton McGuinty and Ontario Progressive Conservative Leader Tim Hudak both said they support the feds in seeking to appeal the ruling that strikes down the federal prostitution law.
Judge Himel, however, found current laws offer little protection. Her judgment pointed at evidence that established violence against sex workers is endemic – from a string of gruesome serial killings by Vancouver pig farmer Robert Pickton, to a rash of missing prostitutes in Alberta and frequent violence against sex trade workers in the Atlantic region.
In her 131-page ruling which took her a year to produce, Judge Himel found that laws set up to protect prostitutes actually endanger their safety, forcing them to furtively engage in hasty transactions conducted in shady locations.
Dominatrix Terri-Jean Bedford, left, carries a riding crop while arriving at Ontario Superior Court with sex workers advocate Valerie Scott in Toronto on Tuesday, October 6, 2009. The Toronto dominatrix and two other sex workers launched a constitutional challenge to Canada's prostitution laws.— THE CANADIAN PRESS
“By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance,” she said. “I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.”
“We got everything,” yelped a York University law professor behind the challenge, Alan Young, as he scanned the judgment seconds after it was released. “We did it.… Finally, somebody listened.”
Judge Himel specifically rejected a request from the Crown to suspend the effects of her decision for 18 months on the grounds that doing so would force sex trade workers to continue working under hazardous conditions. She said the 30-day delay gives the Crown one last chance to persuade her that she should suspend her judgment.
Prof. Young said that, in light of how uncompromising Judge Himel’s findings were, the Crown faces a tough uphill battle in obtaining an additional stay.
“In 30 days, the ruling kicks in and people can start growing their businesses,” he said.
The litigants – Terri-Jean Bedford, a flamboyant dominatrix, and two former prostitutes, Valerie Scott and Amy Lebovitch – expressed shock that they had won any portion of their three-pronged assault on the law, let alone all three.
Ms. Bedford spontaneously leaped from her chair at a Toronto news conference Tuesday afternoon after being asked if she has plans to celebrate. “I’m going to spank some ass. Legally!” Ms. Bedford said, waving her trademark leather riding crop in the air.
“It’s a great day for Canada,” she added. “It’s like emancipation day for sex trade workers.”
