OTTAWA, ON December 20, 2013 – The Catholic Civil Rights League today commented on the Supreme Court of Canada decision in the prostitution case Canada (Attorney General) v. Bedford, in which the League was an intervener.
The unanimous decision, issued today, struck down three Criminal Code provisions regulating prostitution: living off the avails of prostitution; communicating in public for purposes of prostitution; and keeping or being found in a bawdy house. The effect of the decision is suspended for 12 months to give Parliament a chance to respond.
“Clearly this is not the decision we wanted, nor in our opinion is it what the majority of Canadians would wish to see,” said League Executive Director Joanne McGarry. “We encourage the government to introduce new legislation on prostitution that will reduce its incidence and improve the safety and security of its victims.”
According to the SCC, the three impugned provisions were overbroad in their effort to criminalize various activities related to prostitution, which in itself is currently not illegal. The Court reasoned that the provisions were primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes.
The decision says, in part, “The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.
“We urge the government to adopt replacement provisions, which will set out explicitly that prostitution exploits its participants, and causes societal harm”, stated League President, Philip Horgan. He added: “The vast majority of those in the “industry” entered the so-called “trade” at young ages or often when under-aged. Many involved in prostitution are recent immigrants, or drug users, suffering from mental illness, or at the economic margins of society. There is inherent risk in the practice of prostitution, with added societal costs for the associated violence and medical requirements that follow.”
Chief Justice McLachlin recognized these issues, stating: “While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself”. As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population. Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice” — these are not people who can be said to be truly “choosing” a risky line of business.”
The evidence of other countries that have experimented with liberalization of prostitution quickly revealed that such changes led to unintended consequences and to an increase in sex trafficking. A New Zealand Law Review Committee report found in 2008 marked increases in violence and coercion of sex workers following liberalization of prostitution laws in that country in 2003. A recent German report suggested that liberalization of prostitution in that country in 2002 has spawned increased participation to levels of 700,000 prostitutes. Canada should not follow suit.
On the other hand, the passage in Sweden of a law that treats prostitution as a form of violence against women that fosters inequality has resulted in a 50 per cent drop in street prostitution. Sweden is noted for having the least amount of trafficked women in the European Union.
The League intervened in this case at all three levels ,with our partners REAL Women of Canada and the Christian Legal Fellowship, to assert that the Criminal Code provisions reflected Canadians’ shared morality. Liberalization would not improve prostitutes’ safety and would make it easier to lure and exploit vulnerable girls and women. The League supported the government’s view that the laws were not causing the danger to prostitutes, rather that the danger was inherent in the work itself.
While the lower courts agreed that upholding morality is one of the purposes of law, the Supreme Court decision did not address that question.
Our coalition was the only intervention to put forward the argument of shared morality at the Ontario Superior Court level. In the Ontario Court of Appeal and Supreme Court of Canada, some women’s groups intervened to adopt a similar position.
The SCC decision applies nationwide.
Some background information about the case:
The pertinent sections of the Criminal Code are as follows:Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house. Section 212(1)(j) makes it an offence to live on the avails of another’s prostitution. Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
In the first level of the case, Justice Susan Himmel of Ontario Superior Court struck the three provisions, stating that they violated charter rights to security of the person and were overbroad to their purpose.
While reinstating the Criminal Code provision that makes it illegal to publicly solicit or communicate with clients in public, the Ontario Court of Appeal decision upheld the 2010 Ontario Superior Court ruling that provisions against living off the avails and keeping a common bawdy house should be legalized because they placed unconstitutional restrictions on prostitutes’ ability to take safety measures such as hiring security to protect themselves.
– Decision in prostitution appeal disappointing, says CCRL
– Canadian bishops will continue to oppose prostitution despite ruling, Catholic Register, January 2, 2014
– How the courts trump Parliament, National Post, January 3, 2014
About CCRL
Catholic Civil Rights League (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. CCRL was founded in 1985 as an independent lay organization and has chapters across Canada. The Catholic Civil Rights League is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information:
Joanne McGarry, Executive Director, 416-466-8244; joanne.mcgarry@ccrl.ca