Human Rights for Sex Workers

Canada's prostitution laws will be put to the test by a trio of sex-trade workers in a court challenge that has begun in Toronto.

Terri-Jean Bedford, a dominatrix, along with two other prostitutes, Valerie Scott and Amy Lebovitch, have filed papers in Ontario Superior Court arguing that the criminal code violates their constitutional rights and threatens their physical safety.

The criminal code prohibits communicating for the purposes of prostitution or the keeping of a common bawdy house. But the women say they are professionals and are urging the courts to strike down those laws, which force them to work on the streets and not in their homes.

The women have compiled a wide range of documents as part of their case, including parliamentary and government reports, as well as various affidavits from academics, experts and NDP MP Libby Davies.

Update: Reserved Judgement

29th October 2009. See article from nationalpost.com

Judge Himel has heard the case and has reserved her decision until a later date.

An Ontario Superior Court judge is expected to rule in September on a challenge by three sex-trade activists, who are seeking to repeal Criminal Code provisions that make it illegal to run a bawdy house, communicate for the purposes of prostitution and live off the avails of prostitution.

They argue that these laws put lives at risk because they drive prostitutes onto the streets and limit their ability to talk to prospective clients to determine if they might be dangerous.

When you force us to work under the gun, under the radar, in the dark — with no one knowing who we are seeing, how long we've been gone — of course it's going to be dangerous, said Valerie Scott, a former Toronto prostitute and one of the plaintiffs.

But critics of decriminalization say repealing the laws will normalize prostitution, potentially lead to sex tourism, and will do little to curb the cycle of violence — maybe just move it indoors.

Whatever the judge decides, the case likely will be argued all the way to the Supreme Court.

Violence against prostitutes has made headlines across the country in recent weeks. In Ottawa, a 36-year-old prostitute was found stabbed to death in a parking lot. In Halifax, police said a 29-year-old prostitute managed to escape from the trunk of a moving car after being sexually assaulted and threatened.

A judge in Ontario has overturned key Canadian anti-prostitution laws, finding they force sex workers into the streets at risk to their safety.

She ruled with three prostitutes who had challenged bans on brothels, pimps and solicitation.

The ruling applies to Ontario province but could, if upheld on appeal, allow the rest of Canada to follow suit.

Finding the laws unconstitutional, Justice Susan Himel called on the Canadian parliament to regulate the sex trade: These laws... force prostitutes to choose between their liberty, interest and their right to security of the person, she wrote.

Plaintiff Terri Bedford, described in court documents as a prostitute who had been beaten and raped while working in the streets of Windsor, Calgary and Vancouver, said: It's like emancipation day for sex trade workers. The federal government must now take a stand and clarify what is legal and not legal between consenting adults in private.

Justice Himel found national laws banning brothels, forbidding solicitation of clients, and banning Canadians from managing sex workers as pimps or madams violated a provision of the Canadian Charter of Rights and Freedoms guaranteeing the right to life, liberty and security .

The ruling will not go into effect for 30 days, giving the government time to appeal if it chooses.

Update: Canadian government appeals for unsafer sex work

30th September 2010.  Based on article from torontosun.com

Canada's federal government will appeal an Ontario court decision that has cleared the way for legal brothels across Canada, the justice minister says.

Prostitution is a problem that harms individuals and it harms communities and this is why I am pleased to indicate to the House that the government will appeal and will seek a stay on that decision, Injustice Minister Rob Nicholson told the Commons.

Canadian prostitution laws that were struck down by an Ontario judge last week will be extended another month.

When Justice Susan Himel handed down her decision Sept. 28, she also delayed her order from taking effect for 30 days. Now, the grace period is going to be extended an extra 30 days.

Alan Young, the lawyer who argued the case for the winning side, said that he's agreed to a Crown request for a longer grace period.

Simply because they look like they're panicking and in disarray and I feel somewhat sorry for them and I imagine if you've had a bad law for 30 years, another 30 days isn't going to make a huge difference, Young told Global News: After that, I put the gloves back on for the fight.

Young said the Crown will likely go to the Court of Appeal to try to get another stay. But they don't have good evidence for it, because they're going to say the sky is going to fall if they don't have the law. They tried that in the hearing itself and the judge didn't buy it.

The order will be officially signed on Tuesday. It gives the federal government until the end of November to decide upon its next step.

Lawyers for Canada's federal government said that Canada is on the brink of launching an unprecedented social experiment if three key prostitution laws are lifted this Saturday.

The government appeared in the Ontario Court of Justice on Monday to seek a ruling that would delay the lifting of the laws.

But Justice Marc Rosenberg, from the Court of Appeal for Ontario, reserved his decision on Monday, saying that he would attempt to issue a ruling by the Saturday deadline.

If the Ontario Court of Appeal does not agree to give the government more time to consider an appeal, it could mean the end for a number of laws that have effectively criminalized prostitution.

A September ruling by the Ontario Superior Court of Justice struck down laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade.

Prostitution is not illegal in Canada, but nearly everything related to it is. Lawyers who fought for the end of those laws said the adjustment would mean safer conditions for sex-trade workers.

In a ruling released in September, Justice Susan Himel determined the laws created a dangerous environment for sex-trade workers: I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public .

Update: On Hold

28th November 2010. Based on article from  thestar.com

Saturday marks the expiration date of the 60-day stay on Justice Susan Himel's landmark court decision to strike down Ontario's prostitution laws.

But nothing will change for the province's sex workers this weekend, as the Court of Appeal continues to mull over an application by the Crown to extend the stay until the federal government can prepare a proper appeal.

The court's decision won't make the Nov. 27 deadline, but it will come sooner rather than later, said John Kromkamp, senior legal officer for the appeal court: I can't tell you whether it will be Monday or Friday or a week Friday, he said. We try to get our decisions out as quickly as possible. The court will give a day's notice when Rosenberg's decision is ready.

In an appeal court hearing on Monday, all parties agreed that the struck-down laws would remain in place until Rosenberg makes a decision.

A Canadian judge has extended unsafe sex-trade laws while the government prepares an appeals against the court ruling that decriminalized prostitution in Canada.

Prostitution itself is not illegal in Canada, but communicating for the purposes of prostitution, pimping and operating a brothel were considered criminal acts.

Ontario Court of Appeal Judge Marc Rosenberg ruled that the stay on decriminalisation will be extended until April 29.

Update: Mean Minded Minister of Injustice

5th December 2010. Based on article from  pr-usa.net

Rob Nicholson, Minister of Injustice and Attorney General of Canada, made the following statement following the Ontario Court of Appeal's decision to stay the Ontario Superior Court's decision on the Bedford Prostitution Challenge until final disposition of the appeal:

The Government is pleased that the Ontario Court of Appeal has stayed the lower court's decision. This means that the challenged Criminal Code provisions remain in effect until April 29, 2011, or until the appeal is heard by the Ontario Court of Appeal, whichever is the earlier.

It is the position of the Government of Canada that these provisions are constitutionally sound. The provisions denounce and deter the most harmful and public aspects of prostitution. They also ensure that the police have the tools necessary to continue to address the significant harms that flow from prostitution, both to communities and to the prostitutes themselves, along with other vulnerable persons.

The Government of Canada is committed to the health and safety of all Canadians [except sex workers] and the well-being of the country's communities and will continue to defend the constitutionality of these Criminal Code provisions.

Canada's federal government was reviewing its legal options Monday after Ontario's top court swept aside some of the country's anti-prostitution laws, saying they place unconstitutional restrictions on prostitutes' ability to protect themselves.

But it doesn't seem that Prime Minister Stephen Harper is very pleased about safer sex work. He spewed to Postmedia News:

There's some elements we like more than others. We'll examine the decision and decide what the next steps are. But I think the position of this government is well-known. We view prostitution as bad for society, and we view its effects as particularly harmful for our communities and for women, and particularly for vulnerable women. And so we will continue to oppose prostitution in Canada.

The landmark decision means sex workers in Ontario will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or bawdy houses, while exploitation by pimps remains illegal.

However, openly soliciting customers on the street remains prohibited, with the judges deeming that a reasonable limit on the right to freedom of expression.

The Ontario Court of Appeal suspended the immediate implementation of striking the bawdy house law for a year to allow the government an opportunity to amend the Criminal Code.

The decision is binding in Ontario only, but will undoubtedly prompt similar challenges in other provinces.

Federal opposition parties suggested the government was making an inappropriate response to the ruling, urging it to bring the debate to Parliament to develop a solution to protect vulnerable women at risk. NDP deputy leader Libby Davies.

I think the response of the Conservative government always implies a moral involvement and moral judgment. The issue here is the status of the law and the fact that sex work does take place. The issue for us to respond to is how do we protect and ensure that sex workers' rights are upheld just as any other member of society. That's what has been at the core of these court decisions.

Three majority justices of the five-judge panel wrote in their decision:

The government's attempt to salvage its prostitution prohibitions, implies that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal enterprises.

Prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court's role to engage in that debate. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land.

Two-thirds of Canadians support the legalization of brothels, according to the results of an Ipsos Reid poll conducted for Postmedia News and Global Television.

The poll results suggest the judicial system may be aligned with the community values of Canadians more than we thought, said Ipsos Reid CEO Darrell Bricker, referring to the recent Ontario Court of Appeal ruling striking down some of Canada's prostitution laws --- including a ban on brothels or bawdy houses.

There isn't a huge amount of shock and outrage (over the ruling), Bricker said.

Asked to what extent they agreed or disagreed that prostitution in brothels should be legal, 21% of the poll's respondents said they strongly agreed and 44% said they somewhat agreed.

Meanwhile, 20% said they strongly disagreed, while 15% said they somewhat disagreed.

The pollster surveyed 1,004 adults between March 30 and April 1. The estimated margin of error is plus or minus 3.1 percentage points, 19 times out of 20.

In its ruling last week, the Ontario appeal court said the ban on brothels forced sex workers onto the streets, putting their safety at risk. It gave the federal government one year to amend the Criminal Code.

The appeal court also took issue with a ban on living off the avails of prostitution, saying the law was too broad and should be amended to target pimps who exploit prostitutes --- not bodyguards and other support staff.

In the same ruling, however, the appeal court upheld a ban on open solicitation of customers on the street.

Canada's three main anti-prostitution laws appear destined for scrutiny by the country's highest court after the federal government announced that it wanted to appeal a decision that effectively legalized brothels.

In response to a challenge from three sex-trade workers, Ontario's top court last month struck down the ban on bawdy houses on the basis that it increased the dangers prostitutes face because they are forced to work outside.

The five appellate justices also reworded the law against living on the avails of prostitution to clarify it would only apply in cases of exploitation because it could otherwise apply to people such as a prostitute's bodyguards, accountant or receptionist.

In its application to the Supreme Court for leave to appeal, the federal government said the Ontario Court of Appeal judgment creates a legislative void.

This represents a fundamental shift in criminal law and social policy in respect of provisions that have been in force, in some fashion, since prior to Confederation, the application states.

The Ontario government announced it had decided, after a careful review, to join the federal government in seeking to appeal.

The court suspended its ruling on brothels for 12 months to give Parliament an opportunity to draft a new law, and also put a 30-day stay on the altered living-on-the avails provision. The federal government sought an interim extension of the stay, pending arguments on a longer stay, likely next month.

Update: Further Legal Challenges

29th September 2012. See  article from  digitaljournal.com

The Canadian Supreme Court ruled that the Downtown Eastside Sex Workers United Against Violence group together with former sex worker Sheryl Kiselbach can go forward with a legal challenge of Canada's prostitution laws. The court ruling was 9 to 0 to dismiss the Conservative federal government appeal.

The federal appeal argued that the sex worker group and Sheryl Kiselback lacked any legal standing since no charges had been laid. A British Columbia judge had agreed with the federal government stand but the B.C. provincial court of appeal ruled that the group and Kiselbach could pursue their case because the group had public interest standing. On appeal to the Supreme Court of Canada the position of the B.C. appeals court was upheld unanimously.

The Ontario Court of Appeal has already struck down some laws that are being challenged by the B.C. group. However, the federal government is appealing that ruling to the Supreme Court as well.

This Thursday, the Supreme Court of Canada is set to hear Bedford vs. Canada , a case on the constitutionality of criminal laws governing sex work. The case, brought forward by three sex workers, Terry-Jean Bedford, Amy Lebovitch, and Valerie Scott, is a direct result of the refusal of consecutive federal governments to respond to enormous volumes of evidence that these laws do more harm than they prevent.

The science is unequivocal: criminalization of sex work in Canada, and globally, has been an abject failure in protecting sex workers from violence, predation and murder, and has exacerbated vulnerability to HIV and other health inequities among sex workers. While the buying and selling of sex between consensual adults has never been illegal in Canada, criminal laws prohibit working together indoors, owning or renting an indoor place for sex work, living off the avails of prostitution, or communicating in public spaces for the purposes of sex work by sex workers, clients or third parties. Together, these laws make it virtually impossible for a sex worker to work legally, even though the act itself is not forbidden. Evidence has consistently shown that these criminal laws engender stigma, force sex workers to work in isolated and hidden spaces, and prevent access to basic health and support services, including legal and social protections.

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