Ontario court strikes down anti-prostitution laws. What does it mean?


In 2009, three women launched a constitutional challenge on the basis that Canada’s anti-prostitution laws actually increase the danger faced by sex workers and therefore violate our Charter of Rights, especially the right to security.  Then out of the blue, this last Tuesday, we heard that the laws in question have been struck down by an Ontario judge.  My first response was “what? no way”; the second was “that’s so awesome, if it’s actually going to happen”.  My third thought was “better brush up on the particulars”, because this will lead to lots of opportunities to explain something that is (understandably) not obvious to everybody – how striking down Canada’s anti-prostitution laws will actually make things safer.

There are three laws that the court struck down.  Sections 210(1)&(2) of the Criminal Code of Canada make it illegal to own, operate or use a “place” for the purposes of prostitution (making brothels or “bawdy houses” illegal).  Section 212(1)(j) outlaws “living on the avails of prostitution”, and section 213 makes it illegal to communicate in a public place for the purposes of prostitution.  While there is no law stating that selling sex is itself illegal, sections 212(1)(j) and 213 make it impossible to do so legally.  The main concern though, is the effect these laws have on the safety of those women and men who do sell sex.

The problem with making brothels illegal is that it forces sex workers to operate in locations that they have no control over, greatly increasing the risk that they will be assaulted or worse.  This and the law making it illegal to communicate for the purposes of prostitution force sex workers into secluded parts of town, where they must negotiate quickly for fear of arrest, making it hard to properly screen clients.  The law against making a living by prostitution includes people benefitting indirectly and therefore prevents sex workers from hiring security or other professionals to help ensure their safety.  For some, it might take a bit of imagination to see this, but sex workers who work together in a secure location with security and collective health and safety standards are going to be safer.

There are also benefits to the broader community that are of particular concern to us in the HIV service field.  The decriminalization of sex work is a key piece in the prevention of HIV and other sexually transmitted infections (STIs).  Because sex workers cannot work collectively, cannot enforce health standards, and cannot hire security or work in places where they run the show, they have very little say over whether or not condoms are used.  They also do not have easy access to the condoms provided by public health.  All of these factors contribute to the spread of HIV and STIs to the broader population, since, like it or not, it’s members of “the broader population” who are doing the purchasing and going home to wives, girlfriends, or lovers.

Laws against prostitution have made it impossible for sex workers to call the police when they are in danger; it has been impossible to access employment rights or workers compensation, organize unions and associations, or even pay income tax.  All of these things force sex work into a dangerous criminal realm and contribute to criminal activity in a way that can be avoided by simple decriminalization.  Ontario Superior Court Justice Susan Himel ruled that these three laws violate the right to liberty and security guaranteed in section 7 of the Charter of Rights, and that the harm done to sex workers outweighs any harm that will be done to the community by striking the laws (which is what harm reduction is all about).  The changes in no way affect laws against child prostitution or human trafficking.

The changes are set to come into effect in 30 days in the province of Ontario and Justice Himel’s ruling sets a precedent for other provinces to follow Ontario’s example.  While we expect the Conservative Federal government to appeal (and they have promised to do so), there are a number of reasons to be optimistic.  We were not the only ones caught by surprise on Tuesday.  So were the ruling’s opponents.  Thirty days is hardly enough time to prepare a decent appeal, especially since Justice Himel spent a year and a half on her 131-page ruling with 25,000 pages of evidence.  It’s a strong case, and any appeal will have to convince Justice Himel herself that further delay is warranted.  She has already refused to extend the 30 days on the basis that she couldn’t allow for sex workers to go on working in unsafe conditions any longer.  It is possible that this ruling will have a domino effect much like the legalization of same-sex marriage in Canada.  The worst-case scenario is an appeal resulting in further delay.  Even then, this ruling has brought the debate to the fore and into the public eye, and stands to make anybody appealing it look rather silly in the face of Justice Himel’s incredibly strong argument.

As reported in the Globe and Mail on Tuesday, sex workers “will begin pressing immediately for a regulation regime that includes workers’ compensation, health standards and inclusion in the country’s income-tax scheme”.  “We would like to tell residents and business owners: Don’t be afraid” said one of the litigants to a press conference.  “We are not aliens.  Sex workers across the country … want to work with municipalities and to be good citizens running good businesses.”

And this, in my opinion, is good news.