Several provinces say they will not be prosecuting prostitution-related offences that were struck down as unconstitutional by Canada’s highest court, and in some cases existing charges are being thrown out.
Ontario, Alberta, New Brunswick and Newfoundland and Labrador have sent varying signals or directives to their Crown attorneys in the wake of the Supreme Court of Canada ruling last December.
The high court struck down three key prostitution laws – communicating for the purpose of prostitution, living on the avails and keeping a common bawdy house – as unconstitutional, but ruled they should stay on the books for a year to give the government time to craft new laws.
In the meantime, if there are no “alternate prostitution-related charges appropriate to the facts of the case,” Ontario will likely not prosecute under the impugned laws, said a Ministry of the Attorney-General spokesman.
Ontario will continue to prosecute prostitution offences that remain on the books, such as those involving people under 18, procuring, human trafficking, stopping a motor vehicle for the purposes of prostitution and all forms of sexual assault, Brendan Crawley said in a statement.
Police are the ones who lay charges, but final decisions about prosecutions involving the three laws will depend on a case-by-case review, he said.
“The Crown will continue to prosecute prostitution-related charges that are unaffected by the court’s declaration of invalidity where there is a reasonable prospect of conviction and it is in the public interest to proceed,” Crawley said.
“In many cases, there will already be such additional prostitution-related charges before the court. In other cases, alternate charges may be considered.”
The federal government does not appear to be pleased with this approach.
“The attorney-general and justice minister, federally, doesn’t tell police forces or territorial A-Gs to lay charges, but our expectation – and I think the public expectation more importantly, Canadians’ – is that they will be protected by these services,” Justice Minister Peter MacKay said at an unrelated announcement in Halifax.
The government has said it will introduce new prostitution legislation well ahead of the December deadline.
“The expectation is that the provincial prosecution services, police, will uphold the law and the fact is the Supreme Court in handing down the Bedford decision, while striking certain sections of the Criminal Code, those sections remain in effect for 12 months,” said MacKay.
The Bedford decision is so named for Terri-Jean Bedford, a dominatrix who spearheaded the years-long fight against the prostitution laws.
It would be “unfair” to bring someone before the courts on charges that the Supreme Court has deemed unconstitutional, officials in New Brunswick said.
The Crown in New Brunswick recently withdrew a number of such charges that were already before the courts, the public prosecution service said.
But in Ontario, the case of a woman who was convicted of keeping a common bawdy house is leaving the Appeal Court wondering what to do with the appeal of her case.
The Crown can withdraw pending charges, but since she has already been convicted, the court has asked both the Crown and defence for submissions on what is the proper course of action.
Lawyer Alan Young, who fought the Bedford case on behalf of a group of sex-trade workers, said the laws were never really enforced with “great vigour” before. Still, he called the current state of the law a “very odd situation.”
In theory it’s a great idea, being responsive to democratic principles by giving the government time to make new legislation, he said.
“It’s symbolically the right thing to do,” Young said.
“Practically, it’s a disaster, because what it means is the prostitution laws stay in place and in theory you can charge and prosecute, but you can’t take away the fact they’ve been declared unconstitutional. How can you justify convicting somebody on the base of a law that’s unconstitutional? It doesn’t make sense.”
Alberta’s deputy attorney-general issued a practice directive to Crown authorities and police that makes explicit distinctions between how the laws are to be applied to prostitutes and to pimps or johns.
“In their determination of whether or not to proceed with prosecutions brought pursuant to these provisions, Crown prosecutors are directed that it will generally be in the public interest to conduct prosecutions against customers and against those who have exploited prostitutes,” the directive from Kim Armstrong says.
“It will generally not be in the public interest to prosecute prostitutes under any of these provisions.”
She also pointed to various other prostitution-related laws that remain valid, with an emphasis on protecting sex workers from exploitation.
Officials in Newfoundland and Labrador said the province is no longer prosecuting sex-trade workers, but will continue to go after johns and pimps, as well as all charges arising out of exploitative situations, human trafficking and situations involving prostitutes under 18, said Luke Joyce, a spokesman for the Newfoundland and Labrador Justice Department.
Nova Scotia echoed Alberta’s emphasis on exploitation, but was less clear on whether prosecution of the unconstitutional laws will be pursued.
“Provincial efforts have focused on providing help to vulnerable people involved in the sex trade and ending exploitation,” Attorney General Lena Diab said in a statement.
“At this point nothing has changed in that approach. Prosecution will be liaising with police on a case-by-case basis. Whether exploitation is involved will be a key factor the Crown considers in each case.”
Other provinces are still grappling with what to do in the wake of the Supreme Court decision. The British Columbia criminal justice branch is “in the process of developing a set of guidelines for use by Crown counsel in determining how best to proceed,” said spokesman Neil MacKenzie.
“The branch anticipates that prosecutions will continue for prostitution-related offences in circumstances where Crown counsel conclude that it is appropriate to do so.”