Ontario court alters sex trade landscape

TORONTO (Canadian OH&S News)

In a bid to increase sex worker safety, Ontario’s top court has ruled that they should be able to legally work indoors as well as have the ability to hire protection, but selling their services in public is still illegal.

The Court of Appeal for Ontario released its decision on March 26 into a 2010 ruling by Justice Susan Himel that struck down provisions related to bawdy houses (or brothels), living on the avails of prostitution and solicitation in the Criminal Code of Canada.

In a unanimous decision, the five-judge panel declared section 210 (bawdy houses) and section 212(1)(j) (living off the avails) of the code unconstitutional because they made the work unjustifiably more dangerous for workers. The panel was split three-to-two on the constitutional validity of section 213(1)(c), ultimately maintaining the law on public solicitation as a reasonable limit on freedom of expression.

“The court says that sex workers are worthy of the same constitutional protection as all the people in this room,” Alan Young, the lawyer representing sex workers, said in a press conference following the decision.

“The court is telling the federal government to catch up to what the federally appointed Fraser Committee suggested in 1985. Which is pretty much, keep a law for the street and allow bawdy houses,” says Valerie Scott, legal co-ordinator for Sex Professionals of Canada and a respondent in the appeal.

While sex work is not illegal in Canada, those three provisions made practice next to impossible without breaking the law.

“It seems obvious that it is more dangerous for a prostitute if she goes to some unknown destination controlled by the customer, rather than working at a venue under the prostitute’s control at which she can take steps to enhance safety,” the ruling reads. “The advantages of ‘home field’ are well understood by everyone.”

Just giving sex workers the ability to legally work together in a brothel should cut down on instances of violence, Scott argues.

The living on the avails provision, which made it illegal for anyone to make money from a sex worker if the money was earned through prostitution, was modified so it only applies to cases of exploitation. “As it stands, the blanket prohibition on living on the avails catches not just the driver or the bodyguard (who may be a pimp by another name), but also the accountant who keeps the prostitute’s records and the receptionist who books appointments and checks credit card numbers,” the ruling explains.

Government given one year to amend provision

The bawdy house provision has been suspended for one year to give the government time to draft a provision that complies with the Canadian Charter of Rights and Freedoms, and the living on the avails provision is stayed by 30 days.

Justices James MacPherson and Eleanore Cronk disagreed with the majority opinion to have the solicitation provision remain in full force.

“The communicating provision chokes off self-protection options for prostitutes who are already at enormous risk. The evidence in the record about the violence faced by street prostitutes across Canada is, in a word, overwhelming. One does not need to conjure up the face of Robert Pickton to know that this is true,” Justice MacPherson writes.

“The world in which street prostitutes actually operate is the streets, on their own. It is not a world of receptionists, drivers and bodyguards. [It] is a world of dark streets and barren, isolated, silent places. It is a dangerous world, with always the risk of violence and even death,” Justice MacPherson writes.

Opinions from sex work support organizations are divided on whether the ruling is a victory for sex workers.

Keisha Scott, co-ordinator for Maggie’s: The Toronto Sex Workers Action Project, says she was disappointed in the decision. Because the solicitation law was upheld, the ruling can only be considered a small gain for sex workers.

“If you’re privileged enough to be indoors then you’ll be okay but if you choose to work in a different fashion then no, you don’t have the same labour rights or human rights as everyone else,” she says, adding that street-based sex workers are the most vulnerable to violence and abuse.

Bridget Perrier, a co-founder of Sex Trade 101 and a former sex worker, says she was disheartened by the ruling because it legitimizes the work, while her organization is trying to help workers get out and stay out of the industry.

The ruling is expected to be appealed up to the Supreme Court of Canada.

Moving forward, both Valerie Scott and Keisha Scott (no relation) said they hope sex workers are brought to the table when legislation and bylaws are being drafted that will impact their industry.

For its part, the Ministry of Labour is reviewing the decision but is unable to comment, a spokesman says.