Prostitution ruling further exploits the vulnerable

  • October 13, 2010
In late September, Justice Susan Himel of the Ontario Superior Court of Justice struck down the last direct prohibitions in the Criminal Code against prostitution. If upheld (the federal government is currently applying to appeal it), the decision will make it legal to operate a common bawdy house, communicate in public for the purpose of prostitution and live off the avails of prostitution.


The Catholic Civil Rights League was an intervenor in the case, in partnership with REAL Women of Canada and Christian Legal Fellowship. While opposition to the buying and selling of sex is hardly restricted to the religious, two of the intervenor organizations have a religious focus. This led to their application being refused on the grounds that their input would add nothing of value to the case. For those who’ve been watching efforts to remove religious perspectives from public life it was not a surprising decision. Fortunately it was reversed on appeal.

Prostitution is all about the exploitation of vulnerable people, the antithesis of all religious and moral values. The public nuisance that soliciting creates in neighbourhoods is a small corner of a troubling picture.

The group of women who initiated the case, all of whom have long experience as prostitutes in numerous venues, claimed the issue is safety. They are convinced that it would be safer for prostitutes to do their work indoors, in regulated brothels where they could employ security and generally be better able to evaluate risks and reduce the chance of violent encounters. Therefore, they argued, the laws violated their right to security of the person under the Charter of Rights and Freedoms.

Media interest was strong. True to the adage that sex sells, most of the cameras were on the plaintiffs. All the spokespersons for the intervenor groups were women, all roughly the same age as the plaintiffs, though admittedly without the same shock value. Reflecting the inconclusive nature of much of the evidence, some newspapers supported the decision and others did not. Nationally, the National Post editorial was in favour of the ruling while the Globe and Mail opposed it, though both featured columnists with different opinions.

The judge’s decision is the one that counts, however, and in opting to overturn the laws on Charter grounds, she highlighted a problem that many believe has been growing since Charter cases began. In a court challenge, one judge is called upon to make changes that can have many consequences. A subject with as many moral and social dimensions as prostitution laws should be discussed in Parliament. It is unlikely that an MP planning to face the electorate would have opted for this change.  

The independent operator or “madam” of the kind envisioned by the plaintiffs is a minority. They exist, and most of them claim to choose their trade freely, but they represent only a small percentage of the total workers in the prostitution industry, and in any case seem to co-exist with the law without many problems.

For the majority of prostitutes, choice hasn’t played much of a role anywhere in their lives. Most were abused as children and had their first paid encounters before the age of 14, so it is really ridiculous to speak of them having made a choice about what they do. Many suffer abuse and coercion from pimps as well as by customers, and drug addictions are common.

While it’s never easy to establish the prevalence of illegal activities, links to human trafficking and organized crime are strongly suspected. Violence in the trade can and does happen in any venue, and it can happen very quickly. As numerous prostitutes commented wryly, it isn’t the locale or the law that causes the danger, it’s the work itself, and the type of man it sometimes attracts.

The impugned laws are not the only legal avenues that address pimping, but they are the most direct. The ability to arrest pimps and hinder soliciting does indeed involve bringing moral judgment into the law, and it’s a moral judgment most Canadians support. In fact, some former prostitutes said the laws, particularly the living off the avails provision, gave them a provision to involve the police, sometimes initiating a process that helped them leave the life.

The argument of greater safety in a legalized environment has not been borne out in those jurisdictions that have tried it, mainly because the illegal side of the business continues to flourish despite legalization.

It is one thing to acknowledge that our society does not attempt to regulate private sexual practices among adults, but quite another to allow the exploitation of a very vulnerable population in the name of personal freedom. That is why this decision needs to be appealed, and why the intervenors will do their best to participate.

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