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Ontario’s top court legalizes brothels, pimping in bid to protect prostitutes
Ontario’s top court has legalized brothels and pimping that is specifically aimed at protecting prostitutes.
In a landmark decision today, the court said that prostitution is extremely dangerous work where inherent risks are multiplied by laws preventing prostitutes from working together under one roof or hiring security staff.
Commencing next year, a five-judge panel said unanimously, prostitutes in any part of the province can work legally in brothels that will be operated like ordinary businesses.
As of April 25, they can engage bodyguards or security staff.
The court left intact just one of three key provisions that had been challenged by three current or former prostitutes. It said that communicating for the purposes of prostitution will remain illegal.
Yet, even that provision narrowly escaped being struck down.
In the court's only point of disagreement, Mr. Justice James MacPherson and Madam Justice Eleanore Cronk argued that the communication law is unacceptable because it forces street prostitutes to hurriedly negotiate with customers without first being able to size them up.
The refusal of the three other judges to strike down the communication law will likely go a long way to still the fears of politicians and residents who worried about an influx of prostitutes overtly proposing prospective clients in the streets.
The case will inevitably be appealed to the Supreme Court of Canada. A final decision is likely to be at least a year away.
The Ontario appeal court said in Monday’s decision that the bawdy house provision must be struck down in its entirety.
However, it said that it had been able to remodel the pimping law by adding a single phrase. It said that it will remain illegal to live off the avails of prostitution, but only “in circumstances of exploitation.”
The change will allow police to prosecute violent and manipulative pimps while at the same time permitting prostitutes to engage drivers or security staff to protect them, the court said.
The other three judges presiding in the case were Mr. Justice David Doherty, Madam Justice Kathryn Feldman and Mr. Justice Marc Rosenberg.
In the one area of disagreement – the law that prohibits communicating for the purposes or prostitution -- the three majority judges said that the provision has largely worked to prevent disorder in the streets and neighbourhoods.
Eliminating streets prostitution has prevented men and women from being subjected to unwanted solicitation And has helped police control drug trafficking, public intoxication and organized crime, they said.
The three judges acknowledged that the law may prevent prostitutes from being able to size up potentially dangerous customers before jumping into their cars. However, they reasoned that, with indoor prostitution now being made legal, there will be strong incentives for outdoor prostitutes to move into homes or brothels.
All five judges said the law prohibiting the operation of bawdy houses, “is grossly disproportionate” to its stated aim of avoiding disorder and maintaining public health standards.
“The record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control,” they said.
The court emphasized that prostitutes are forced to break the law if they work indoors. The risk of being killed or maimed by violent customers undeniable, they said.
“The impact on those put at risk by the legislation is extreme,” the court said. “We have no hesitation endorsing the application judge’s holding that the impact of the bawdy house prohibition on prostitutes, and particularly street prostitutes, is grossly disproportuonate to its legislative objective.”
The judges conceded that brothels can be used to conceal underaged prostitutes or those trafficked from foreign countries, but said those ills must be attacked as best the police are able.
“The advantage of investigating these cases through the indirect method of bawdy house investigations has to be measured against the harm faced by prostitutes because they cannot work in a safe environment,” the court said.
The court stressed that there is nothing preventing Parliament from enacting new laws provided they comply with the Charter rights of prostitutes.
At the same time, it gave short shrift to Crown arguments steeped in morality and the belief that prostitution itself is a form of unacceptable exploitation.
The overall aim of constitutional challenge was to attack what the litigants claimed was a historical illogicality with hazardous consequences. Namely, prostitution is perfectly legal, yet, virtually every form of conducting acts of prostitution are illegal.
The Court of Appeal agreed today that the provisions under attack were not truly aimed by legislators at eradicating prostitution, as government lawyer had argued in the appeal.
Rather, they said the purposes of the provisions were to eliminate some of the undesirable social consequences of sex work – neighbourhood disruptions and the exploitation of vulnerable women by pimps.
The court also had little to say about Crown arguments that prostitutes are autonomous workers who make an informed decision to engage in a dangerous trade, knowing the risks that face them.
“This submission must fail,” it said. “It 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.”
By making prostitution legal, the court emphasized, Parliament effectively pronounced that, “it is as legal as any other non-prohibited commercial activity,” the judges said. However, they agreed with Ontario government lawyers that future a legislative scheme could properly seek to reflect social values such human dignity and equality of women, “but that is not the legislative scheme currently in place,” it said.
At the same time, the court said that by trying to reformulate the intent of a musty law prohibiting “bawdy houses,” government lawyers had engaged in, “a wholesale re-evaluation of ancient legislation to accord with modern values.”
They were also unimpressed by Crown arguments that some prostitutes would continue to operate outside the law even of prostitution were decriminalized.
The court’s decision repeatedly endorsed the approach Ontario Superior Court Judge Susan Himel took at the original trial. However, the appellate judges emphasized that they did not merely adopt her reasoning and conclusions; they examined the evidence carefully in order the reach their own findings.
It said that 88 volumes of evidence generated during the trial resulted in “very strong” evidence that the existing laws force prostitutes to work in the shadows, where they are significantly more prone to becoming victims of violence.
“Everyone agrees that prostitution is a dangerous activity for prostitutes,” the court said. “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 advantages of ‘home field’ are well understood by everyone.”
Ontario’s top court has legalized brothels and pimping that is specifically aimed at protecting prostitutes.
In a landmark decision today, the court said that prostitution is extremely dangerous work where inherent risks are multiplied by laws preventing prostitutes from working together under one roof or hiring security staff.
Commencing next year, a five-judge panel said unanimously, prostitutes in any part of the province can work legally in brothels that will be operated like ordinary businesses.
As of April 25, they can engage bodyguards or security staff.
The court left intact just one of three key provisions that had been challenged by three current or former prostitutes. It said that communicating for the purposes of prostitution will remain illegal.
Yet, even that provision narrowly escaped being struck down.
In the court's only point of disagreement, Mr. Justice James MacPherson and Madam Justice Eleanore Cronk argued that the communication law is unacceptable because it forces street prostitutes to hurriedly negotiate with customers without first being able to size them up.
The refusal of the three other judges to strike down the communication law will likely go a long way to still the fears of politicians and residents who worried about an influx of prostitutes overtly proposing prospective clients in the streets.
The case will inevitably be appealed to the Supreme Court of Canada. A final decision is likely to be at least a year away.
The Ontario appeal court said in Monday’s decision that the bawdy house provision must be struck down in its entirety.
However, it said that it had been able to remodel the pimping law by adding a single phrase. It said that it will remain illegal to live off the avails of prostitution, but only “in circumstances of exploitation.”
The change will allow police to prosecute violent and manipulative pimps while at the same time permitting prostitutes to engage drivers or security staff to protect them, the court said.
The other three judges presiding in the case were Mr. Justice David Doherty, Madam Justice Kathryn Feldman and Mr. Justice Marc Rosenberg.
In the one area of disagreement – the law that prohibits communicating for the purposes or prostitution -- the three majority judges said that the provision has largely worked to prevent disorder in the streets and neighbourhoods.
Eliminating streets prostitution has prevented men and women from being subjected to unwanted solicitation And has helped police control drug trafficking, public intoxication and organized crime, they said.
The three judges acknowledged that the law may prevent prostitutes from being able to size up potentially dangerous customers before jumping into their cars. However, they reasoned that, with indoor prostitution now being made legal, there will be strong incentives for outdoor prostitutes to move into homes or brothels.
All five judges said the law prohibiting the operation of bawdy houses, “is grossly disproportionate” to its stated aim of avoiding disorder and maintaining public health standards.
“The record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control,” they said.
The court emphasized that prostitutes are forced to break the law if they work indoors. The risk of being killed or maimed by violent customers undeniable, they said.
“The impact on those put at risk by the legislation is extreme,” the court said. “We have no hesitation endorsing the application judge’s holding that the impact of the bawdy house prohibition on prostitutes, and particularly street prostitutes, is grossly disproportuonate to its legislative objective.”
The judges conceded that brothels can be used to conceal underaged prostitutes or those trafficked from foreign countries, but said those ills must be attacked as best the police are able.
“The advantage of investigating these cases through the indirect method of bawdy house investigations has to be measured against the harm faced by prostitutes because they cannot work in a safe environment,” the court said.
The court stressed that there is nothing preventing Parliament from enacting new laws provided they comply with the Charter rights of prostitutes.
At the same time, it gave short shrift to Crown arguments steeped in morality and the belief that prostitution itself is a form of unacceptable exploitation.
The overall aim of constitutional challenge was to attack what the litigants claimed was a historical illogicality with hazardous consequences. Namely, prostitution is perfectly legal, yet, virtually every form of conducting acts of prostitution are illegal.
The Court of Appeal agreed today that the provisions under attack were not truly aimed by legislators at eradicating prostitution, as government lawyer had argued in the appeal.
Rather, they said the purposes of the provisions were to eliminate some of the undesirable social consequences of sex work – neighbourhood disruptions and the exploitation of vulnerable women by pimps.
The court also had little to say about Crown arguments that prostitutes are autonomous workers who make an informed decision to engage in a dangerous trade, knowing the risks that face them.
“This submission must fail,” it said. “It 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.”
By making prostitution legal, the court emphasized, Parliament effectively pronounced that, “it is as legal as any other non-prohibited commercial activity,” the judges said. However, they agreed with Ontario government lawyers that future a legislative scheme could properly seek to reflect social values such human dignity and equality of women, “but that is not the legislative scheme currently in place,” it said.
At the same time, the court said that by trying to reformulate the intent of a musty law prohibiting “bawdy houses,” government lawyers had engaged in, “a wholesale re-evaluation of ancient legislation to accord with modern values.”
They were also unimpressed by Crown arguments that some prostitutes would continue to operate outside the law even of prostitution were decriminalized.
The court’s decision repeatedly endorsed the approach Ontario Superior Court Judge Susan Himel took at the original trial. However, the appellate judges emphasized that they did not merely adopt her reasoning and conclusions; they examined the evidence carefully in order the reach their own findings.
It said that 88 volumes of evidence generated during the trial resulted in “very strong” evidence that the existing laws force prostitutes to work in the shadows, where they are significantly more prone to becoming victims of violence.
“Everyone agrees that prostitution is a dangerous activity for prostitutes,” the court said. “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 advantages of ‘home field’ are well understood by everyone.”
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