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.
"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."
Ms. Scott said that prostitutes will begin pressing immediately for a regulation regime that includes workers' compensation, health standards and inclusion in the country's income-tax scheme. "We don't have to worry about being raped or robbed or murdered," she said.
"We would like to tell residents and business owners: Don't be afraid," Ms. Scott added. "We are not aliens. Sex workers across the country … want to work with municipalities and to be good citizens running good businesses."
Regardless of whether or not the decision is appealed, it is likely to plunge Parliament back into a divisive debate over criminalizing the operation of an activity that is itself perfectly legal.
Prof. Young warned the press and public not to fall for an inevitable onslaught of misinformation and scare stories that government officials will issue as it bids to prop up the law.
"This was a big bite out of the heart of government," he said. "They are going to feel this one. I don't know what this means now; whether or not we will see five-storey brothels like the ones in Germany."
However, Prof. Young also said that the public need not fear that prostitutes and pimps are about to run amok in their communities. Nor, he said, should people allow any distaste they may have for prostitution to cloud the central issue in the case.
"This case is all about protecting the security and safety of people working in the sex trade, regardless of what you think of sex-trade work," he said. "We have had a moral aversion to the sex trade for hundreds of years, but any time you can do something that increases peoples' safety, you have done something good."
In her ruling, Judge Himel cited approvingly efforts made by countries such as New Zealand, Australia and Germany to decriminalize and control the sex trade in a safe manner.
She emphasized that several other provisions relating to the sex trade can still be used by police to prevent neighbourhoods from turning sleazy, and to curb child prostitution, procuring or prostitutes who impeded pedestrian or vehicular traffic.
Judge Himel also stressed that pimps who threaten or commit violence against prostitutes can still be prosecuted using other sections of the Criminal Code.
Both sides in the case spent years amassing a vast body of international evidence, including dozens of witnesses.
The Crown argued that prostitution can be equally dangerous whether it is conducted in a car, an open field or a luxurious boudoir. It urged Judge Himel to also reflect on the fact that prostitution is inherently degrading and unhealthy, and should not be encouraged as a "career choice" for young women through a slack legal regime.
Prof. Young countered that prohibiting communication renders prostitutes unable to "screen" potential clients, hire security or move behind the relative safety of closed doors.
Several cities - including Toronto, Victoria, Windsor, Calgary and Edmonton - charge fees to licence body-rub establishments despite the general understanding that many sell sexual services.
Prof. Young ridiculed them on Tuesday for hypocritically reaping licensing fees while pretending not to know that they are fronts for prostitution.
"For a decade, they have been charging exorbitant licensing fees for rub-and-tugs," he said. "Now, at least we won't have to charge them with living off the avails."
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