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Prostitutes still at risk despite gain

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The Ontario Court of Appeal, in its decision Monday, seems to have danced too finely on the head of a pin while attempting to carve out a legislative regime to protect prostitutes. It appropriately struck down or reworked two laws that clearly trample on the ability of sex-trade workers to work safely. The court, however, also found the law that prohibits communication for the purpose of prostitution complied with the Charter of Rights and Freedoms.

No doubt, the federal and Ontario governments, which defended the current legislative regime, will appeal this decision to the Supreme Court of Canada. Such a move will permit reconsideration of the communication law, which puts street workers at unnecessary risk as it prevents them from sorting between safe and dangerous clients.

The Appeal Court struck down the prohibition against bawdy houses, noting it not only prohibited the archaic concept of a place of 'ill repute' -- large establishments that created raucous disturbances in neighbourhoods -- but also made it illegal for sex-trade workers to carry on their business quietly, in the privacy of their own home. This means that not only is the law over-broad, but it forces sex workers onto the street or to work clandestinely, raising the risk to them. It gave Parliament a year to sort out how to make such a law Charter compliant.

Similarly, the court decided the law that forbids living "off the avails" of a prostitute endangered workers because, while it targeted pimps who exploit them, it also made it illegal for a sex-trade worker to hire a bodyguard. But rather than striking down it down entirely, the court said the prohibition should be restricted to those who "exploited" prostitutes.

The court noted prostitution itself has been legal for a long time. The laws then interfere with sex workers' ability to work safely, in the name of protecting them and the community. It has long been recognized that forcing sex workers to the margins made them more vulnerable to those who prey on them. Regulating the industry can better prevent the risks to health and neighbourhoods. And to this, the Appeal Court said reframing the law on living off the avails would still meet that intent. While recognizing the modern-day incarnation of bawdy houses includes the dens kept by human traffickers, the court rightly noted the Criminal Code's many other provisions give sufficient means to fight that scourge.

The two governments are likely to take this on to the Supreme Court as the next step of the battle. The Harper government could simply adopt the opinions of the court to nip the battle in the bud, but that would not serve this legal conflict. It would likely see the communication law eventually return to court.

As the Appeal Court noted, not all sex workers will go indoors. Experience the world over shows it is the most vulnerable who work the streets. The idea they can keep themselves safe without talking to their potential clients -- using buddies to keep watch, recording licence plates and the like -- oddly passed muster with this court, but two dissenting judges noted that error. The Supreme Court should get a crack at this law, to strike down the prohibition to communicate. Then all governments can get busy at regulating the industry.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Gerald Flood, Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition March 27, 2012 A10

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