Last week, Justice Susan Himel of the Ontario (Canada) Superior Court ruled that certain Canadian anti-prostitution criminal laws violated the Canadian Charter of Rights and Freedoms and were therefore unconstitutional. A copy of the opinion is available here.
At issue in the case were three particular provisions of the Criminal Code: the “bawdy-house provision” (section 210), the “living on the avails of prostitution” provision (section 212(1)(j)) and the “communicating provision” (section 213(1)(c)):
210. (1) Every one who keeps a common bawdy-house1 is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Every one who
(a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,
is guilty of an offence punishable on summary conviction.
212. (1) Every one who … (j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
213. (1) Every person who in a public place or in any place open to public view …
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
According to Justice Himel, these provisions interfere with prostitutes’ rights to “express themselves in an effort to protect their personal safety,” among other rights.
Writing here in the (Canadian) Globe and Mail, Professor Benjamin Perrin (Law, UBC) describes the opinion as “a strikng example of judicial activism run amok.” He says:
The greatest flaw in Judge Himel’s reasoning is that she places the blame for the risks involved in prostitution on criminal offences against solicitation, bawdy houses and living off the avails of prostitution, rather than on the violent johns and traffickers who are the real cause of physical violence, rape and murder in Canada’s sex trade.
Perrin favors the Swedish approach, which punishes those who pay for sexual services, not those who provide them.
On its public affairs program, the Canadian Broadcasting Corporation hosted a conversation between Swedish embassy representative Charlotta Schlyter and Canadian MP Joy Smith. Smith supports the Swedish approach. A recording of that program is available here.
H/T Martin Dufresne.
Update: See Katherine Franke’s take on the case here.