Terri-Jean Bedford, left, and Valerie Scott, shown in 2009, along
with a third woman, launched a constitutional challenge of Canada's
anti-prostitution laws. An Ontario court ruled Tuesday the Criminal Code
provisions relating to prostitution contribute to the danger faced by
sex-trade workers.(Michael Turschic/CBC)
An Ontario court has thrown out key provisions of Canada's
anti-prostitution laws in response to a constitutional challenge
by a Toronto dominatrix and two prostitutes in 2009.
Superior Court of Justice ruled Tuesday the Criminal Code
provisions relating to prostitution contribute to the danger
faced by sex-trade workers.
In her ruling, Justice Susan Himel said it now falls to
Parliament to "fashion corrective action."
"It is my
view that in the meantime these unconstitutional
provisions should be of no force and effect,
particularly given the seriousness of the charter
violations," Himel wrote.
"However, I also recognize that a consequence of this
decision may be that unlicensed brothels may be
operated, and in a way that may not be in the public
The judge suspended the effect of the decision for 30
days. It does not affect provisions dealing with people
Federal Justice Minister Rob Nicholson and Rona
Ambrose, minister for the status of women, both said the
government is concerned about the decision and "is
seriously considering an appeal."
Dominatrix Terri-Jean Bedford, Valerie Scott and Amy
Lebovitch had argued that prohibitions on keeping a
common bawdy house, communicating for the purposes of
prostitution and living on the avails of the trade force
them from the safety of their homes to face violence on
The women asked the court to declare legal
restrictions on their activities a violation of charter
rights of security of the person and freedom of
The women and their lawyer, Alan Young, held a news
conference Tuesday afternoon and expressed elation.
"It's like emancipation day for sex-trade workers,"
said Bedford, adding the ball is now in Prime Minister
Stephen Harper's court. "The federal government must now
take a stand and clarify what is legal and not legal
between consenting adults in private."
'This decision means that sex workers can
now pick up the phone and call the police and report
a bad client.'— Valerie Scott
Scott called it an amazing victory, saying the
decision lessens the risk of violence for sex workers.
"We don't have to worry about being raped and robbed
and murdered," she said. "This decision means that sex
workers can now pick up the phone, and call the police
and report a bad client. This means that we no longer
have to be afraid, that we can work with the appropriate
Moreover, sex workers can set up guilds and
associations, health standards, workers' compensation
programs, as well as pay income tax. "We want to be good
citizens and it's time, now we finally can," said Scott.
Young handled the case mostly free with the help of
20 of his law students. They were up against nearly a
dozen government lawyers.
"Personally, I am overjoyed because this is a great
David and Goliath story. Sex-trade workers are
disenfranchised and disempowered, and no one has
listened to them for 30, 40 years," Young said.
Ontario AG considers appeal
The case does not solve the problems related to
prostitution, he said.
"That's for your government to take care. Courts just
clean up bad laws."
"So what's happened is that there's still going to be
many people on the streets and many survival sex workers
who are motivated by drugs and sometimes exploited by
very bad men. That's not going to change," Young added.
"Here's what changed. Women who have the ability, the
wherewithal and the resources and the good judgment to
know that moving indoors will protect them now have that
legal option. They do not have to weigh their safety
versus compliance with the law."
A spokesman for Ontario's attorney general said the
office will be reviewing the decision carefully and will
consult federal colleagues regarding a potential appeal.
"Ontario intervened and argued that the prostitution
provisions of the Criminal Code are constitutional and
valid and designed to prevent individuals, and
particularly young people, from being drawn into
prostitution, to protect our communities from the
negative impacts of street prostitution and to ensure
that those who control, coerce or abuse prostitutes are
held accountable for their actions," said the statement
from the Ontario attorney general's office.
The government had argued that striking down the
provisions without enacting something else in their
place would "pose a danger to the public."
'Shocking and horrific'
Some conservative groups such as REAL Women of
Canada, which had intervener status in the case, argued
that decriminalizing prostitution may make Canada a
haven for human trafficking and that prostitution is
harmful to the women involved in it.
While prostitution is technically legal, virtually
every activity associated with it is not. The Criminal
Code prohibits communication for the purpose of
prostitution. It also prohibits keeping a common bawdy
house for the purpose of prostitution.
Those laws enacted in 1985 were an attempt to deal
with the public nuisance created by streetwalkers. They
failed to recognize the alternative — allowing women to
work more safely indoors — was prohibited.
The ban on bawdy houses is an indictable offence that
carries stiffer sanctions, including jail time and
potential forfeiture of a woman's home, while the ban on
communication for prostitution purposes is usually a
summary offence that at most leads to fines.
The provisions prevent sex-trade workers from
properly screening clients, hiring security or working
in the comfort and safety of their own homes or
brothels, Young said.
Young cited statistics behind the "shocking and
horrific" stories of women who work the streets, along
with research that was not available when the Supreme
Court of Canada upheld the communication ban in 1990.