The appeal court was ruling on the appeals launched by the federal and Ontario attorneys general after Himel ruled the Criminal Code provisions against common bawdy houses, living of the avails of prostitution, and communicating for the purpose of prostitution in public violated s. 7 of the Charter of Rights and Freedoms.
“To conclude, the impact on those put at risk by the legislation is extreme,” wrote justices David Doherty, Marc Rosenberg, and Kathryn Feldman in Canada (Attorney General) v. Bedford. “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 disproportionate to its legislative objective.”
While the appeal court suspended its ruling on bawdy houses for a year, it took a more assertive approach on the prohibition related to living off the avails by reading in the phrase “in circumstances of exploitation” and having that change take effect in 30 days. In doing so, it sought to amend the law in order to allow sex-trade workers to hire and get help from people who don’t exploit them, such as bodyguards and drivers. In that way, the prohibition on living off the avails extends only to those, such as pimps, who actually exploit sex-trade workers and exempts those who, while they may make money from their work, nevertheless provide them with protection.
“The state response is out of all proportion to the state objectives,” the judges wrote. “While the provision is ostensibly aimed at protecting prostitutes from harm, it prevents them from taking measures that could reduce harm and at worst drives them into the hands of the very predators that the law intends to guard against.
But on the third provision, the prohibition against communicating for the purpose of prostitution in public, the majority on the appeal court disagreed with Himel. While they agreed that the provision prevents sex-trade workers from speaking to prospective customers in order to take precautions before agreeing to a job, they ruled it’s not clear that that part of the law is the cause of the harm they experience. “The evidence suggests — and the submissions of many of the interveners reinforce — that poverty, addiction, gender, race, and age are the primary sources of survival sex workers’ marginalization,” they wrote.
The ruling largely followed Himel’s findings with the respect to the dangers faced by sex-trade workers as a result of the three provisions despite the fact that prostitution itself is legal. The ruling hinged in large part on the finding that the provisions limit the s. 7 right under the Charter to security of the person by exposing sex-trade workers to physical harm while engaging in the lawful activity of prostitution.
“For present purposes, it is sufficient to say that on our interpretation, the bawdy-house provisions criminalize the practice of prostitution at a fixed indoor location; the living on the avails provision criminalizes the use of support and security staff funded by the proceeds of the prostitution, regardless of whether the relationship is an exploitative one; and the communicating provision prohibits any attempt by street prostitutes to screen potential customers by speaking with those customers in a public place for the purpose of prostitution,” the judges wrote.
“On the facts as found by the application judge, each of the provisions criminalizes conduct that would mitigate, to some degree, the risk posed to prostitutes. On those findings the relevant Criminal Code provisions, individually and in tandem, increase the risk of physical harm to persons engaged in prostitution, a lawful activity.”
The appeal court judges went on to agree with those findings on the issue of limits to security of the person. But two of the appeal court judges, justices James MacPherson and Eleanore Cronk, disagreed with the ruling on communicating in public for the purposes of prostitution. In their view, even striking down the bawdy-house provision and amending the one on living off the avails wouldn’t fully protect all sex-trade workers since many of them “will stay on the streets because of coercion, insufficient resources or lack of support networks. For many prostitutes, safe working spaces are hard or impossible to come by.”
The result of today’s ruling leaves the communicating provision in full force. But the amended provision related to living off the avails takes effect in 30 days. Parliament, meanwhile, has a year to decide how to respond to the ruling on bawdy houses.