Ontario Court of Appeals Ruling: Charter Challenge on Canada's Prostitution Laws

On March 26, 2012 the Ontario Court of Appeal (OCA) announced a ruling that could change Canada’s current prostitution laws. Although prostitution, the exchange of sexual services for money or other goods, is legal in Canada there are elements of the criminal code that surround sex work that are illegal. The OCA ruled on three of those provisions. The OCA ruled that provision restricting “common bawdy houses” be struck down so that sex workers could work indoors and in groups to increase safety. Secondly, the OCA found that the provision restricting “living on the avails” of prostitution criminalizes non-exploitive relationships, and held that this provision should only apply where there are “circumstances of exploitation.” Lastly, the OCA upheld the provision criminalizing communicating for the purpose of prostitution, holding that the purpose of the provision, reducing nuisance and harm to communities, is legitimate and must be weighed against the harms it causes. Although these changes in the prostitution laws will only apply in Ontario, the persistent has been set for across the country. It is also widely speculated the matter will continue on to the Supreme Court of Canada within the next year.

There are many positive steps forward with the changes in the prostitution laws. When it comes to change in the common bawdy house provision, sex workers will be able work in locations that they are familiar with, such as their homes or other safe locations. Sex workers will also be able to work in groups to increase their safety. The change in the living off the avails allows for those involved in the sex industry to increase their safety by being able to hire staff to act as security, drivers or receptionists.

The victory, however, was only partial. Upholding the law against communicating for the purpose of prostitution decreases a sex worker’s ability to communicate for his or her own safety. This provision particularly impacts the most marginalized and vulnerable. It is most often street based sex workers who are charged with communication for the purpose of prostitution. With the change in the bawdy house law, some argue that isn’t as much of a concern as people can work indoors. Although simply moving indoors seems like an easy alternative, it is not always that simple. Moving indoors means that the sex worker needs to have a safe space indoors to work in, which may not always be the case. Moving indoors could also mean the need to acquire an escort license, which takes a fee and a criminal record check that can be a barrier. For those sex workers who work on the street, their chance of being charged increases. Being criminalized can open up a whole lot of challenges from fines, a criminal record, and involvement in the justice system to name a few. Criminalization creates barriers to staying safe and in fact exiting sex work.

Regardless of whether a sex worker is working outdoors or indoors, safety is not present without the ability to communicate. Communication enables the sex worker to screen potential clients and clearly address services, fees, and locations without fear of being charged. Preventing communication takes away sex workers’ voices and their ability to manage their own personal safety.

Laws that prohibit prostitution do not end people’s involvement in sex work just as decriminalizing prostitution does not encourage people to enter into the sex industry. There will always be people involved in sex work, what is essential is to support those who want to leave sex work in doing so and to ensure safety for those individuals who are not exiting the sex industry.

AIDS Calgary supports the decriminalization of sex work and is pleased to see steps in this direction. For more information on AIDS Calgary’s position statement in support of decriminalization, please see: http://www.shiftcalgary.org/Past_Events.html