The Supreme Court of Canada has struck down the country's major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadians' basic values.
Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament's means of controlling it infringe the constitutional rights of prostitutes.
"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes," she wrote.
"The prohibitions all heighten the risks. . . . 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."
The court suspended its ruling for one year to give Parliament time to respond. The ball is now back in the court of Justice Minister Peter MacKay, who needs to decide whether to adopt new prohibitions and if so, how to ensure those prohibitions do not fall afoul of the court.
Mr. MacKay suggested in a statement that the government will continue to look at prohibiting prostitution in some fashion. The government is "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons," he said.
The court suggested Parliament has wide options for continuing to criminalize prostitution-related activities, even perhaps maintaining aspects of the existing laws. It said the prohibitions on street soliciting, brothels and living off the avails are all intertwined and have an impact on one another.
"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."
To stand, any new laws would have to "take seriously the safety concerns of people who are engaged in sex work," Elaine Craig, a law professor at Dalhousie University, said.
The government has a wide set of options. "As far as I can tell there is no constitutional bar to prohibiting the sale of sex for money provided the harm of the law doesn't grossly outweigh the federal government's objective in adopting it," Prof. Craig said.
She said the prostitution laws struck down by the court "were nuisance laws. They were about trying to ensure that people in good, upstanding neighbourhoods were not exposed to the unsightliness of sex workers. These laws were never about protecting sex workers." And the court saw the harms as out of whack with the laws' objectives.
The ruling is one of the most important since the Canadian Charter of Rights and Freedoms was enacted in 1982 and will alter a longstanding feature of the Canadian legal landscape, much like previous Charter rulings on gay marriage on abortion did. Laws against brothels and pimps go back to pre-Confederation days.
The federal government had argued that prostitutes choose to accept the risks of an inherently dangerous trade, such as violence from customers. But the court said vulnerable individuals fall into prostitution not always of their own accord.
"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."
The court cited specific harms caused by each of the three laws. The ban on brothels prevents prostitutes from working in safer indoor locations, and is "grossly disproportionate to the deterrence of community disruption." The law against living off the avails of prostitution is intended for pimps, but also bans "legitimate drivers, managers, or bodyguards. . . accountants or receptionists." The ban on street soliciting is intended to take prostitution out of public view to prevent nuisance, but endangers prostitutes by preventing them from weeding out dangerous clients, and is therefore grossly disproportionate to its purpose, the court said.
The court – with a majority of judges appointed by Prime Minister Stephen Harper – followed the line it established two years ago, when only two Harper appointees sat on the nine-member court, in unanimously ordering the federal government not to close down a Vancouver clinic at which people could inject illegal drugs under medical supervision.
The ruling does not necessarily mean open season for prostitution. The Conservative government could still craft new laws that make prostitution or related offences criminal activities. If prostitution becomes legalized, cities would be faced with the challenge of where to permit prostitution and – if they refuse to permit it at all, or try to confine it to out-of-the-way places – potential constitutional challenges of their own.
Terri-Jean Bedford, one of three current and former prostitutes who brought the challenge to Canada's prostitution laws, said in court documents she was abused as a child, entered prostitution at 16 to pay for her drug addictions and those of her 37-year-old boyfriend, and was "raped and gang-raped too many times to talk about" as a street prostitute in Winnipeg, Calgary and Vancouver.