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Prostitution laws struck down

High court gives Ottawa year to rewrite legislation

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OTTAWA -- The Supreme Court of Canada started the clock ticking Friday for Parliament to reshape social policy dealing with the world's oldest profession, as political battle lines were drawn.

In a unanimous 9-0 ruling on Friday, the high court struck down the country's prostitution laws, giving Parliament a year to produce new legislation. That means prostitution-related offences will remain in the Criminal Code for one more year.

Justice Minister Peter MacKay said the government is "concerned" by the ruling, and is "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons."

Meanwhile, Employment Minister Jason Kenney raised the spectre of judicial activism -- saying legislators, not judges, should be making the law. It's a topic Prime Minister Stephen Harper has complained about as recently as this week.

"My own view is the judiciary should be restrained of the exercise of overturning a democratic consensus. Having said that, we of course respect the independence of the judiciary and its role," said Kenney.

'Our fate should not be decided by the church. We are a secular nation'

-- Former sex-trade worker Valerie Scott

The high court struck down all three prostitution-related prohibitions -- against keeping a brothel, living on the avails of prostitution and street soliciting -- as violations of the constitutional guarantee to life, liberty and security of the person.

The ruling comes more than two decades after the court last upheld the anti-prostitution laws. It represents a historic victory for sex workers -- mainly women -- who were seeking safer working conditions.

Advocates for sex workers asked for a seat at the table in the coming year as the government crafts a response. But they and their advocates were skeptical the Harper Conservatives, known for their tough-on-crime agenda, would be receptive.

The Evangelical Fellowship of Canada has the ear of the government, proposing to criminalize pimps and johns, but not prostitutes themselves. That makes the church group an unlikely ally of the Women's Coalition for the Abolition of Prostitution, which backs the "Nordic model" that has found favour in Sweden, Norway and Iceland.

That pairs those two groups against the sex workers who won Friday's case and who are calling for all-out decriminalization.

"Our fate should not be decided by the church. We are a secular nation," said former prostitute Valerie Scott of Toronto, one of three principals in the case, along with retired dominatrix Terri-Jean Bedford and Vancouver sex worker Amy Lebovitch.

Chief Justice Beverley McLachlin, writing on behalf of the court, noted Canada's social landscape has changed since the last time the high court considered this issue in 1990.

"These appeals and the cross-appeal are not about whether prostitution should be legal or not," she wrote. "They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.

"I conclude that they do not."

In the 1990 reference, the Supreme Court upheld a ban on street solicitation, but the two female justices on the court at that time dissented.

This time, all six male Supreme Court justices sided with their three female colleagues.

The decision upheld last year's Ontario Court of Appeal ruling that said the law banning brothels exposed sex workers to added danger by forcing them onto the streets.

"The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law," McLachlin wrote. "Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes."

Sex-trade workers argued much has changed since the high court last considered prostitution, including the horrific serial killings of prostitutes by Robert Pickton in British Columbia.

The Supreme Court appeared to acknowledge the Pickton case in the ruling, saying: "A law that prevents street prostitutes from resorting to a safe haven such as Grandma's House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose."

The court also struck down the law that makes living on the avails of prostitution illegal, rejecting the Ontario government's argument it is designed "to target the commercialization of prostitution and to promote the values of dignity and equality."

 

-- The Canadian Press

Republished from the Winnipeg Free Press print edition December 21, 2013 A3

History

Updated on Saturday, December 21, 2013 at 6:18 AM CST: Replaces photo

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