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Ontario sex work judgment in 489 words

Today the Ontario Court of Appeal delivered a landmark decision on the constitutionality of Canada’s prostitution laws. The decision was a partial victory for sex workers across the country.

The decision deals with the bawdy-house law, which restricts indoor sex work, the “living on the avails” law, and the law restricting communicating in public for the purpose of prostitution.

PIVOT, SWUAV and PACE intervened in this case in Ontario to support the claim of Ms. Lebovitch, Ms. Bedford and Ms. Scott that the Criminal Code provisions are unconstitutional. We were there to provide the court with the distinct perspective and experience of street-based sex workers in Vancouver, and had the opportunity to make arguments to the court about the specific impacts of the communicating law in our community. The decision reflects our submissions, and the dissenting judgment in particular reflects the disproportionate effects of the communicating law on street-based survival sex workers.

Here is a summary of the judgment:

All five judges of the Court found that the security of the person and liberty rights of sex workers are impacted by the criminal code, and recognized the serious effects of these laws because of the ways in which they reduce the ability of individuals to make decisions and take steps to do their work more safely.

The five justices all found that the provision restricting “common bawdy houses” is grossly disproportionate and overbroad, and struck this provision down.  

The five justices also found that the provision restricting “living on the avails” of prostitution is overbroad because it would criminalize non-exploitive relationships, and held that this provision should only apply where there are “circumstances of exploitation.”

However, three of the five justices 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.  

Two judges disagreed with the majority's decision regarding the communicating law and said, in their dissent, that they would have struck the communicating provision on the basis that it has a severe impact on street level sex workers.

They write: "The world in which street prostitutes actually operate is the streets, on their own. It is not the world of hotels, homes, or condos. It is not a world of receptionists, drivers, and bodyguards. The world in which street prostitutes actually operate is a world of dark streets and barren, isloted, silent places. It is  a dangerous world, with always the risk of violence and even death."

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The Ontario Court of Appeal’s decision will most certainly be appealed to the Supreme Court of Canada. It is unfortunate that the Ontario Court of Appeal did not strike the communicating law on the basis that of its grave effects on street-based sex workers, but we hope at that level the court will hold, as the minority did, that the communicating provision “will remain deeply problematic even if the bawdy-house provision is struck down and the living on the avails provision is altered.”

You can read the full judgment here: http://www.ontariocourts.ca/decisions/2012/2012ONCA0186.htm