Action Canada for Population and Development points out that on Monday, the Court of Appeal in the Canadian province of Ontario plans to release its decision on the legality of the province’s repressive prostitution laws. If not earth-shaking, this ruling could at least be street-shaking. Three laws stand under review: they criminalize pimping, keeping a brothel, and communicating for the purpose of prostitution. The last is especially egregious only because its assault on free speech should be evident; in fact, of course, it’s only one of innumerable such laws around the world. An Ontario defense lawyer explains people’s rights, or lack thereof, under the provision, and the catechistic formula makes this darkly funny:
Is it a crime in Canada to engage in prostitution or to obtain the sexual services of a prostitute? Yes. Either stopping or attempting to stop a person in order to communicate for the purpose of prostitution or alternatively, communicating or attempting to communicate for the purpose of prostitution will be sufficient to ground a conviction for the offence. This means that both the prostitute and the person seeking the prostitute’s services can be found guilty of this offence.
What if I wasn’t successful in my attempt to obtain a prostitute’s services? It is not necessary to be successful in one’s attempt to communicate for the purpose of prostitution. Merely attempting to communicate with a prostitute is sufficient to be convicted of the offence.
What if I was asking the prostitute how much s/he charged out of curiosity and NOT with the intention to solicit their services as a prostitute? The Crown must prove as a fact that it was the intention of the accused person to solicit services for the purpose of prostitution. The accused must be “serious”. S/he must mean what s/he says and be willing and ready to carry out the transaction. Simply being curious or joking is permitted under the legislation and is not evidence of the required intention to communicate for the purpose of prostitution….
Must there be a monetary transaction for the offence of communicating for the purpose of prostitution to be completed? No. Money does not have to be tendered for the offence of communicating for the purpose of prostitution to be complete. All that is required is an intention to engage in the sexual act.
It’s a relief that joking about prostitution is permitted, as well as simple curiosity about price ranges. It’s hard to imagine how either capitalism or democratic politics could continue without some legal leeway for the latter.
A lower court struck down all three laws in 2010. The primary rationale was that the provisions increase the dangers sex workers face. The question of personal freedom was not entirely circumvented, but the judge found centrally that “These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.” According to the Globe and Mail,
Ontario Superior Court Judge Susan Himel based her decision on a broad conclusion that current laws offer little protection. She pointed at evidence that violence against sex workers is endemic – from serial killings by Vancouver farmer Robert Pickton, to missing prostitutes in Alberta and frequent violence against sex trade workers in the Atlantic region.
“By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance,” Judge Himel said. “I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.”
The case could eventually head to the Supreme Court of Canada. If Himel’s ruling is upheld, however, the protection grounds on which she based it could open the way not for a general liberalization of Canadian laws, but for a shift to targeting only the client, not the sex worker — the so-called “Swedish model.” The restrictions on sexual autonomy would simply be moved, at least formally, to the consumer.
Canada, that happy if chilly non-colonial and rights-based country, too often gets a free pass for its frequently appalling treatment of sex workers, both by and beyond the law. One reason is that its laws are not globally atypical, however at odds with the country’s professions of respect for freedom. Another, though, is that the disparity between its reputation and its record simply doesn’t register with many “mainstream” human rights activists. After all, Human Rights Watch and other players in the field don’t recognize that sex workers have any right to be sex workers. If the Ontario court hands down a progressive ruling, perhaps it might stimulate both reassessment and remedy for a persistent, wounding blindness among human rights practitioners.