Prostitution laws continue for at least another month

[Megan'sTouch 23875]

Interesting, so did you and her work together for a time? Did she ever mention why she was a sex worker, i.e. was she doing research, or paying her way through school, etc.?

Just google her name if you want to know more about her and her experiences. I'm not going to post anything here that isn't already publicly available.

[Guest W***ledi*Time]

The earlier CBC claim that the decision was coming out today seems to have been incorrect.

 

CP24 is now reporting that the decision is coming Thursday 2 December:

Ontario's highest court will rule Thursday whether Canada's prostitution laws will stay in place pending an appeal of a landmark ruling...

 

Court of Appeal for Ontario Justice Marc Rosenberg heard arguments last week and reserved his decision.

 

The court has indicated Rosenberg's decision will come Thursday at 11 a.m.

...

http://www.cp24.com/servlet/an/local/CTVNews/20101130/101130_law/20101130/?hub=CP24Home

[drlove 37202]

If the judge extends the stay, then what?

[Megan'sTouch 23875]

If the judge extends the stay, then what?

At least from my understanding, the laws will still be actively on the books until the appeal is heard. Of this, this doesn't mean they will be enforced. Everything I've seen from the Ottawa police is that they will only being going after bawdy houses that involve human trafficking.

[drlove 37202]

I was thinking in terms of legislation... will parliament concoct a law which effectively makes all forms of prostitution illegal, as in the States?

[Guest W***ledi*Time]

CP24 is now reporting that the decision is coming Thursday 2 December ...

 

The Court of Appeal has now confirmed this on their own website: "decision will be released at 11 am on Thursday, December 2, 2010".

 

http://www.ontariocourts.on.ca/decisions_index/new_releases.htm

[thompo69 198]

I was thinking in terms of legislation... will parliament concoct a law which effectively makes all forms of prostitution illegal, as in the States?

 

If the stay continues, it is exceedingly unlikely that parliament will pre-empt the judicial process.

[Guest W***ledi*Time]

Kirk Makin reports for the Globe & Mail, 2 Dec 2010:

 

http://www.theglobeandmail.com/news/national/stay-extension-keeps-prostitution-laws-in-legal-limbo/article1821995/

It is still against the law for prostitutes in Ontario to work in brothels and openly solicit customers.

 

Ontario Court of Appeal Judge Marc Rosenberg extended a stay of proceedings imposed when a Toronto judge decriminalized prostitution in September.

 

Thursday's decision extends the stay until April 29, putting pressure on the government to expedite the appeal of Ontario Superior Court Judge Susan Himel's decision.

 

Mr. Justice Rosenberg said that, while he found some of the government's arguments, ?less than compelling,? he was reluctant to leave a sudden regulatory void in the prostitution laws.

 

However, the public benefit that might be realized if the stay were lifted was not sufficient to justify changing the status quo.

 

Terri-Jean Bedford, a sex trade worker who helped launch the challenge, expressed disappointment about the ruling. However, she aimed her anger at the federal government and Prime Minister Stephen Harper.

 

?The prime minister is hiding behind the courts,? she said. ?He should come out and fight like a man. His silence means that he is not concerned about the violence against women.

 

?The only people who benefit from this law right now are tax evaders and organized crime.?

 

York University law professor Alan Young said that Judge Rosenberg was placed in a very difficult decision without being able to examine all of the evidence that led to the laws being struck down.

 

?Its business as usual for the government, which means a bad law will continue to be under-enforced,? Prof. Young said.

 

Nikki Thomas, a spokesman for Sex Professionals of Canada, said that sex workers ?are not waiting around so that they can run into schoolyards and start leaving condoms under monkey bars ... This is about human rights and our ability to look after ourselves, our partners and our children. You won't see a huge explosion of sex workers in the streets.?

 

Prostitutes were divided on Judge Himel?s decriminalization decision. Some applauded it as a move toward ending the constant jeopardy that many of them face in their trade. Others feared being caught in red tape as they deal with health inspectors, tax collectors and licensing officials as a result of decriminalization.

 

Opponents had warned lifting the stay would see street prostitutes descend on residential neighbourhoods and allow pimps to operate freely.

 

In her ruling Judge Himel suggested chaos would not reign in the streets in the event of decriminalization, since other Criminal Code provisions would permit authorities to control violent pimps or prostitutes who become a nuisance.

Text of today's ruling:

 

http://www.ontariocourts.on.ca/decisions/2010/december/2010ONCA0814.htm

 

Excerpt from the ruling:

This stay will be in effect until April 29, 2011 or until the appeal is argued, whichever is the earlier, unless varied by a further order of this court or a judge of this court. The parties may wish to reconsider the timetable to which they had previously agreed and which would have delayed hearing of this appeal to sometime in late June, 2011. I note that counsel for the responding parties was prepared to argue the appeal as soon as possible. This court is available to hear this appeal at the end of April, before the expiration of

th

is order.

[VedaSloan 119179]

Oh WIT, I can always count on you to beat me to the punch. :)

[Guest W***ledi*Time]

Oh WIT, I can always count on you to beat me to the punch. :)

 

And ... I was four hours late in updating this "Legal Discussion" thread!

 

Megan was first to post the breaking-news on this, with a link to the CTV story in the Cerb "In the News" area:

 

http://www.cerb.ca/vbulletin/showthread.php?t=39384

[Guest W***ledi*Time]

I just ran across this video (1 hr) of Goldhawk Live on CPAC, 28 Nov 2010.

 

Subject: "What's your reaction to the changes that an Ontario ruling has made to our prostitution laws?"

 

Guests: Christine Bruckert, Associate Professor of Criminology, University of Ottawa; Don Hutchinson, Vice-President, General Legal Counsel, The Evangelical Fellowship of Canada

 

A civilized discussion; Bruckert gets stronger as the debate progresses and successfully resists Hutchinson's unflagging attempts to muddy the waters. Good clean fun!

 

http://www.cpac.ca/forms/index.asp?dsp=template&act=view3&pagetype=vod&hl=e&clipID=4791

[Guest Ou**or**n]

Words fail me. I can only speculate the government wants to lose this quickly so they can turn it into an election issue.

[Guest W***ledi*Time]

In a legal brief filed with the Ontario Court of Appeal, government lawyers argue that the state does not owe prostitutes a promise of safety if they choose a profession that is fraught with danger.

 

This is essentially the same argument that has been used all along.

 

From Judge Himel's Superior Court of Justice decision, here is her summary of the position of the Attorney General of Canada:

 

[17] According to the respondent [AG of Canada], prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large. The respondent asserts that social science evidence in Canada and internationally demonstrates that

the risks and harms flowing from prostitution are inherent to the nature of the activity itself. Thus, the risks and harms exist

regardless of the many ways in which prostitution is practised, whether "street" or "off-street," and

regardless of the legal regime in place.

Moreover, prostitution is associated with other harmful activities that include physical violence, drug addiction and trafficking, the involvement of organized crime and the globalization of the sex industry and trafficking in persons.

 

(my bold)

 

http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html#_Toc270411873

[Lou 9208]

Poor Crown people, that they came up with something like that demonstrates that they have absolutely no argument. If it is not a responsibility of the State to protect workers that have a legit job and its citizen, why do they have laws to protect other workers?

 

I noticed also that 5 judge will listen to the appel! That is rare!!!!

[Guest W***ledi*Time]

... I noticed also that 5 judge will listen to the appel! That is rare!!!!

 

From the Ontario Court of Appeal's website:

 

"Appeals are heard by panels of three or sometimes five judges."

 

http://www.ontariocourts.on.ca/coa/en/

 

No mention of why it's sometimes five instead of three.

[SamanthaEvans 166766]

Appeal panels always have an uneven number of judges so that there cannot be a tie result. When an appeal is considered to have major implications for legal and social policy, five judges hear the matter.

 

Since the decision of the Ontario Court of Appeal is likely to be appealed to the Supreme Court of Canada, having a full panel of five judges render a decision is appropriate.

 

If the judges do not agree unanimously, the one or two in the minority will write reasons for their disagreement and those reasons will be included in the judgment.

[Lou 9208]

Yes, but it is still quite exceptionnal that more than 3 judges hear an appeal. Plus, you never know which case will get to Supreme Court. Obscur cases deprive of any media attention end in Supreme Court. Even for the obvious one's, it is not a fact.

 

The same sex couple trials in both BC and Ontario were not heard by 5 judges, only 3. At this time, everyone was pretty confident, including judges, that Supreme court was the next step- but it did not happend! Contrary to what most people believe, none of the same sex mariage cases were heard by the Supreme court. Instead, the goverment wrote a new law which - by removing the expression "between a man and a woman" from the mariage act - did not prohibit homos to get married anymore. When they were done writing the Law project, they asked a Supreme Court opinion on that matter, but only in regard of their Law project, not in regard of the appeal court decisions. The Court studied the Constitution and argued that it does not prohibit same sex marriage - so the law project is legal and can be voted. This means that the Supreme Court never ruled that it is unconstitutional for gays not to have equal mariage right, it only prononced itself that it is not unconstitutional to allow same sex mariage. So, if ever Harper has majority, he made it clear that he wishes to create a new law that will prohibit same sex couples to get married. At this point, gays will have to start all over again hoping they'll get to Supreme court and that it will rule in their favor by making it clear in a judgement that it is unconstitutional to vote a law that prohibits them to get marry.

 

We don't know if the Bedford case will end up in Supreme court, chances are good but only time will tell.

 

However, one thing we know for sure is that if ever the Ontario Appeal Court rules in favor of Himel and for some reason, the government does not appeal or the Supreme court refuses to hear the case, it becomes law of the country.

 

Why are they 5 judges? I don't know, maybe simply because they find the case challenging on many aspects!?!?!

[scribbles 6031]

I don't think it's at all surprising that there are 5 judges. This is a case that will, one way or another, define a moment in history. Because of the incredibly powerful nature of the subject being tried, the courts will heap prudence on this appeal. Nobody wants to say that the decision was made, for or against, lightly.

 

And there's nothing new in what the Crown is asserting, but I wouldn't take that lightly either. Their argument might not hold much water, but it's been successful in marginalizing sex workers for a very long time. It's built on stereotype and false perception, but those are powerful tools in persuasion.

 

I'm a little surprised that the tactic hasn't been to simply make prostitution illegal, as it is in the US. After all, you can't argue and complain about working in unfit conditions if the work you do is against the law. My fear is that all of this will lead to the government doing just that.

[fortunateone 156618]

I guess the main thing is they have to try to defend those specific laws. And you know, if you think about, the laws were put in place at a different time, when basic sex work could be advertised in only a few different ways, and most of that meant going outside. Whether that is advertising thru street work or doing outcalls due to being with an agency, it left little option to advertise to a client who would come to your location.

 

With the advanced technology, ladies need not leave their home, even to place ad ad. If they do, they are linked via celphone for safety, so the comment they go into it knowing it might put them in danger is crapola, since these are the kinds of things that reduce that danger. Even not working for someone else, as in agency work, helps reduce their personal danger, since an independent can control who they see. If their options, as they were in the mid 80s, are work the street or go on calls set up by a 3rd party. Having control over who you see and where you see them is huge for safety reasons.

 

Their argument fails, since it only confirms what is being said. The laws prevent sps from working from home, or in a shared controlled environment. The laws force street and outcall work, and keeps the sps work in the hands of a 3rd party, like an agency as well, since doing that may help keep some security and safety as opposed to outcalls arranged and screened by themselves on their own.

 

Alot of what they say, and how they say, it makes me think they are deliberately trying to lose. They just don't want to back down, as that might look bad for the anti-crowd, but going in with such ludicrous claims makes me think they want to lose the argument. That takes it out of their hands, out of their control for a law change they know is bad news lol.

[SamanthaEvans 166766]

I think that the Ontario government brief will be shown to be describing the situations of outside workers. Everyone knows that the women who work outside are the ones who are most in danger of violence and predation. Inside workers, on the other hand, whether working independently or in massage parlors, are the least victimized. More than 85% of sex trade workers work indoors, and the great majority of us are independents.

 

I also think that the court will not be recommending that all sex work be made illegal since there is no demonstrable social harm caused by indoor workers. There are very few charges laid and even fewer prosecutions of independent workers. Most of the charges are laid against massage parlors under the bawdy house provisions. The court may decide to make outdoor prostitution illegal but whether that would actually succeed is an open question.

 

The real question is going to be about the bawdy house laws, I think. Anti-sex folks will want to raise the specter of noisy brothels on every street corner, but I trust that POWER and Maggie's will show that most sex workers already work independently, on our own or with perhaps one other worker, and most of us don't want to work any other way. We're quiet and circumspect. I know that the people in my neighbourhood would be scandalized to think that a prostitute is working on their street. They'd be even more upset to learn that I'm not the only one in the neighbourhood. But that's just the point: there's no reason for them to know because we stay well below the radar.

 

Even if new laws are written making it illegal for prostitutes to work anywhere other than in brothels, most of us will not comply. We like the privacy we now have and so do our clients, on the whole. Many men who see paid companions regularly would never go to a recognized brothel for fear of being outed to their spouses, family and friends.

[Guest W***ledi*Time]

I think that the Ontario government brief will be shown to be describing the situations of outside workers. Everyone knows that the women who work outside are the ones who are most in danger of violence and predation...

 

Contrariwise, the government denies this. Their position in this appeal is that "the risks and harms exist regardless of the many ways in which prostitution is practised, whether "street" or "off-street".

 

I also think that the court will not be recommending that all sex work be made illegal...

 

Exactly. The court cannot do that. This constitutional challenge does not address the broader question of whether prostitution should be legal or illegal: "the court has not been called upon to decide whether there is a constitutional right to sell sex or to decide which policy model regarding prostitution is better. That is the role of Parliament."

 

http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html#_Toc270411873

[Lou 9208]

Groups who which to be granted with Intervener status can't come up with just any arguments. Under specific criterias established by legal precedents, Interveners have to provide the Court a different perspective or additional arguments about the challenged laws. These arguments have to be more than presumptions, have to rest on evidences (like unbiased studies done with academyc-scientific standards, official statistics, etc). The arguments also have to make sense in law.

 

The State can't criminalize a behavior because it distressses or shocks the moral-values of a portion of society. For the State to limit people freedoms that are protected by charters, it has to be for serious matters. The prohibited behaviour have to create harm to others but not just any harm. A social nuisance, like street prostitution sometime creates, is not a "serious harm" on a legal perspective. There are other ways than criminal laws to deal with these problems, ways that have significantly less impact on civil rights and fundamental liberties of consenting adults contracting for sexual services. The Interveners (who will intervene in favor of himel views) have to demonstrate the Court that the challenged laws disproportionnaly hurt the criminalized people while having very few impacts, if any, on what it intends to avoid or prevent. In other words, what the state intends to prevent is not hurtful as much as the harms these laws create.

 

I believe that Power wishes to demonstrate that #7 of the Charter, in regards of prostitution laws, should be looked up by the Court with an equality perspective (gender, LGBT issues, aboriginal, drug abuse, poverty of women). That these laws disproportionnaly affect individuals that are already disproportionnally disadvantage.

 

Potential Interveners are making their case Friday March 10 at the Ontario Court of appeal. If the Court grants them with Intervener status, once the trial takes place (in a couple of months), they will have about 10 minutes to argue. Their oral argument have to be supported by a written document. All the documents provided by interveners are public.

 

If ever anyone would like to see for themself how this translate on paper, The Legal Pivot Society posts online all of its courts interventions, factum, Intervener motions. They have a similar case going on in BC and wish to intervene in Ontario. They defend mainly street sex workers interest.

[etasman2000 15994]

If the lawyers had known they would have to consider this argument, they would have compiled more data on the

demographics of prostitutes in Canada and compare it with other sex-trade workers such as strippers and escorts

.

 

This sentence implies there is a distinction between prostitutes, strippers and escorts.

 

What is the distinction between prostitution and escorting ? Is this distinction supported by way of legislation ?

 

A quick search in the CCofC didn't show a definition for prostitution.

[Guest W***ledi*Time]

... A quick search in the CCofC didn't show a definition for prostitution.

 

Prostitution is not defined in the Criminal Code. Its definition has been left to the courts.

 

As Lamer, J. observed in Reference re ss. 193 and 195.1(1)© of the Criminal Code (Man.) with respect to the definition of prostitution:

 

In terms of words and phrases like "prostitution" and "acts of indecency", I note that they have been given meaning by courts on many occasions, and I re-iterate that these are largely terms of common usage. Prostitution for example has been defined as the offering by a person of his or her body for lewdness for payment in return: see R. v. Lantay, [1966] 3 C.C.C. 270 (Ont. C.A.), adopting the English position in R. v. De Munck, [1918] 1 K.B. 635 (C.C.A.)

It seems to me that there is little dispute as to the basic definition of prostitution, that being the exchange of sexual services of one person in return for payment by another.

...

 

(my bold)

 

http://www.canlii.org/en/ca/scc/doc/1990/1990canlii105/1990canlii105.html

 

In the recent case from Quebec where the question of whether or not contact-dancing in a strip-club constitutes prostitution, it is stated, for example:

 

.... intercourse is not a necessary component of prostitution, as Parliament itself has recognized in paragraph 212(1)(b) Cr. C. by distinguishing between ''illicit sexual intercourse'' and ''prostitution'' ...

 

http://www.canlii.org/en/qc/qcca/doc/2010/2010qcca1155/2010qcca1155.html

[SamanthaEvans 166766]

Thanks for posting that, WiT.

 

Does this still leave it open for Maggie's to launch a Section 15 challenge in the future? I know that Charter challenges can be very expensive!