Justice Marc Rosenberg of the Ontario Court of Appeal has decided to stay the decision of Justice Susan Himel in the Ontario prostitution case Bedford v Canada (A-G). What’s that mean?
Justice Himel’s decision proposed striking down three provisions of the Criminal Code which would have made it legal to operate a “common bawdy house,” legal to live off the avails of prostitution (i.e. make money by selling the bodies of others) and legal to communicate for the purpose of prostitution. Those provisions remain intact as a result of Justice Rosenberg’s decision to keep the law as it is currently found in the Criminal Code unless and until such time as the Court of Appeal hears the full appeal and makes a determination otherwise.
To be clear, it is still against the law to operate a house of prostitution, to live off of the proceeds of prostitution or to communicate for the purpose of prostitution.
This interim decision is the result of a time deadline for appeal that was established by Justice Himel and which the lawyers for the Governments of Canada and Ontario felt they could not meet.
The test for granting a stay pending appeal requires that the court be satisfied:
i) There is a serious issue to be tried;
ii) The party seeking the stay (in this case the people of Canada) would suffer irreparable harm should the stay not be granted; and,
iii) The balance of convenience and public interest considerations favour the stay.
So, Justice Rosenberg has concluded those conditions apply and the decision of Justice Himel is stayed. What’s that mean for the future of prostitution in Canada?
First, what it doesn’t mean is that the current laws are safe from being struck down, as proposed by Justice Himel, or that the current laws are effective at preventing prostitution.
Justice Rosenberg was careful to note that he was not reviewing the volume of materials that Justice Himel considered in arriving at her decision, nor was he assessing the legal arguments made by the parties to the case. He was simply assessing what was presented to him in regard to the three point test above in order to decide whether to maintain the status quo until the Court of Appeal decides on the merits of the full appeal. Justice Rosenberg also set a date deadline for the stay, noting that the governments have until April 29, 2011 to have their documentation finalized and get before the court or the law will fall.
In short, there remains the possibility that current prostitution laws will be found unconstitutional by the Court of Appeal and be dropped from the books.
Also remaining is the question of the effectiveness of the current laws. The current laws do not actually prohibit prostitution, but do prohibit a number of the surrounding activities.
A review of the number of people charged under the prostitution provisions of the Criminal Code between 1986 and 1995 reveal what we would expect, charges were divided roughly evenly between men and women. Unfortunately, the review also reveals that convictions were skewed more toward the women (39% spent time in jail) than the men (3% spent time in jail).
Current laws are not working in regard to keeping prostitutes off the streets, and less so at keeping those who would buy the body of another for their own use off the streets.
Similar laws to ours were in place in Sweden until 1999. Following a change in law that saw prostitutes encouraged to accept opportunities to move out of the “business” and focused on criminalizing the purchasers and purveyors of prostitution, Sweden experienced a quick 50% reduction in prostitution.
Perhaps, what the decision does mean is that with Canada’s laws in danger and the Court of Appeal keeping government lawyers on a short leash, this is the time for Canada’s government to not simply defend current laws in the courts but explore the options for more effective laws.
If the goal is reducing prostitution, there’s clear evidence of a better legal model.
If the goal is getting prostitutes off the street and out of the business, there’s clear evidence of a better legal model.
If the concern is that current laws might be struck down by the courts, there’s clear evidence of a better legal model. That’s worth thinking (and doing) about when one considers the future of prostitution, and prostitution laws, in Canada.
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For a more detailed review of Canadian and Swedish prostitution laws see “Selling Ourselves: Prostitution in Canada, Where are we Headed?,” the April 2010 report of the Evangelical Fellowship of Canada comparing the Canadian, Swedish and Dutch laws and the correlation between prostitution and human trafficking.