REAL Women of Canada together with the Christian Legal Fellowship and the Catholic Civil Rights League intervened in a challenge of Canada’s prostitution law before one of the most liberal courts in Canada, the Ontario lower court, called the Ontario Superior Court of Justice. The case was heard by a single judge, Madam Justice Susan Himel in October 2009.
On September 28, 2010, Madam Justice Himel handed down her decision in which she struck down three major provisions on prostitution in the Criminal Code. These provisions included the prohibition against operating a common bawdy house, living off the avails of prostitution, and communicating for the purposes of prostitution.
She did so, on the basis that these laws increased the risk of harm to street prostitutes and the risk was too high a price to pay to eliminate what she described as a “social nuisance”. This was a dismissive way of decriminalizing the law which was aimed at preventing the victimization, degradation and exploitation of women and children and a few men.
The effect of her ruling is that she has decided that prostitution and its accompanying activities, is a legal right which must be protected by S.7 of the Charter of Rights, which provides for the “liberty and security of persons”. In short, Madam Justice Himel has declared that the prostitution laws prevented prostitutes from conducting their lawful business in a safe environment which could be provided by in indoor setting, i.e. a brothel, rather than on the streets, and that such activity must be protected by the Charter of Rights.
Her conclusions, however, are based on two false premises: first of all, that there is a constitutional right to engage in prostitution (there is no such thing) and that prostitution conducted from a legal brothel is “safer” for prostitutes. This is not the case, as experience in other countries has shown.
Prostitution entails a high level of risk for individuals who engage in it, and significant harms to society at large, wherever it takes place. Social science evidence in Canada and internationally demonstrates that the risks and harms flowing from prostitution are inherent to the nature of the activity itself. Thus, the risks and harms exist, regardless of the many ways in which prostitution is practiced, whether “street” or “off-street”, and regardless of the legal regime in place. Moreover, prostitution is associated with other harmful activities that include physical violence, drug addiction and trafficking, the involvement of organized crime, and the globalization of the sex industry and trafficking in persons.
Removing the preventive laws on prostitution, as Madam Justice Himel has done, has made even more prostitutes vulnerable to harm, because one of the effects of decriminalizing prostitution is to increase the number of prostitutes who operate in both legal (brothels) and illegal situations (on the streets). It also allows especially vulnerable women, such as aboriginal women and others, to be used and exploited in human trafficking.
Another effect of her decision is that overturning the offence of keeping a common bawdy-house, will now prevent police from raiding homosexual bath houses, where unprotected, promiscuous sex acts are rampant. In the past, police have raided such premises, based on the provision of the Criminal Code.
Judicial Activism
A single, appointed judge, non-answerable to the public, has handed down a decision on a national, social policy that would never be passed by an elected Parliament.
As stated in an editorial in the Toronto Globe and Mail (September 29, 2010):
…who is she [Judge Himel] to weigh all the potential harms at stake and decide matters, on either side? Who says she can do a better job than Parliament? … that is a job for elected legislators, not a judge.…Parliament is in a far better position to listen to all the evidence, including how Canadians think and feel about the issue, than a judge.
Government to Appeal Decision
The federal Attorney General, Rob Nicholson, has announced that the federal government will appeal the decision of Madam Justice Himel. REAL Women will seek leave to intervene in this case on appeal and will continue to do so until the matter has been finally settled by the Supreme Court of Canada.
|
