We put the "S" in "struck down"

September 28, 2010 11:47 AM

A superior court judge in Ontario has struck down several prostitution laws, on the basis that they endanger prostitutes. That is all.
posted by mightygodking (41 comments total)

Dear writers and reporters: When you write a story about a law being struck down, or a decision overturned, it really helps if you explain what the law or decision was originally. People in Ontario may be immediately familiar with what the law was (and thus why it should or shouldn't have been struck down), but people from elsewhere probably aren't. And, sorry, there are enough other competitors for my time and attention that I'm unlikely to set off on a personal research effort to learn the background.

(I hear my newspaper journalism prof's voice in my head, saying "It's a newspaper story — it should be understandable on its own, without requiring the reader to do further research. And for god's sake, put the most important things first. Inverted pyramid, people!")
posted by Lexica at 11:59 AM on September 28, 2010 [6 favorites]

Wow. That's awesome. Thanks for posting this.
posted by joannemerriam at 12:00 PM on September 28, 2010

Won't somebody think of the johns?
posted by Danf at 12:01 PM on September 28, 2010 [1 favorite]

Lexica: "Three prostitutes launched the challenge....the litigants challenged three key provisons relating to communicating for the purpose of prostitution, living off the avails and keeping a common bawdy house (brothel).

The litigants would have viewed winning on one of them as a major triumph. They hardly dared to imagine gutting the law entirely. “We got everything,” [said their lawyer]"

Sounds like good news.
posted by Infinite Jest at 12:06 PM on September 28, 2010

There's a CBC article that includes more details.

While prostitution is technically legal, virtually every activity associated with it is not. The Criminal Code of Canada prohibits communication for the purpose of prostitution. It also prohibits keeping a common bawdy house for the purpose of prostitution.

Those laws enacted in 1985 were an attempt to deal with the public nuisance created by street walkers. They failed to recognize the alternative — allowing women to work more safely indoors — was prohibited, Young [Alan Young, the women's lawyer] had said previously.

Young called it "bizarre" that the ban on bawdy houses is an indictable offence that carries stiffer sanctions, including jail time and potential forfeiture of a woman's home, when the ban on communication for prostitution purposes is usually a summary offence that at most leads to fines.

The provisions prevent sex workers from properly screening clients, hiring security or working in the comfort and safety of their own homes or brothels, he had said.

posted by bewilderbeast at 12:07 PM on September 28, 2010 [1 favorite]

Dear writers and reporters: When you write a story about a law being struck down, or a decision overturned, it really helps if you explain what the law or decision was originally.

This is a fair complaint, so I will do what the link doesn't. Bad Globe and Mail!

Anyway, the decision strikes down three laws: keeping a common bawdy house, communicating for the purposes of prostitution, and living off the avails of prostitution. The issue at hand is that soliciting money in exchange for sex is not, in and of itself, illegal in Canada; therefore it is a legal activity and only certain aspects of it are illegal. (Much in the same way that you can have a perfectly legal boxing match, so fistfighting is not, per se, illegal - until the conditions show up to turn it to, say, aggravated assault.)

The first two laws were both struck down because they make the practice of an activity that is technically legal unsafe. Under those two laws, you cannot ask a potential client questions about your upcoming act of solicitation, either in person (communicating for purpose) or from behind a door (keeping a bawdy house). Questions like - for example - "are you a vicious sex murderer who likes to kill prostitutes" are illegal under those laws. Since a prostitute cannot engage in an activity which is technically legal in a safe manner thanks to these laws, they were struck down for offending civil liberties.

Living off the avails of prostitution was struck down for simpler reasons: if sex for money is legal, then criminalizing living off the money you got for sex has to be legal as well.

And there you go.
posted by mightygodking at 12:07 PM on September 28, 2010 [12 favorites]

Won't somebody think of the children free market?

All kidding aside, I wish this were a U.S. court. Prostitution should not be criminalized. Abuse of prostitutes, whether by pimps, panderers, johns, traffickers - should be.

There is no slippery slope here. You can bet that most people who prostitute themselves have little consideration for the legality of it, and a great deal of consideration for the necessity of it.

Children and women will likely be far less likely to be victims of sexual coercion if the sex trade could be brought out into the open.

Why we have to keep relearning the lessons of Prohibition over and over again is beyond me.
posted by Xoebe at 12:15 PM on September 28, 2010 [9 favorites]

Keeping a Common Bawdy house was (and might still be) used to raid swingers clubs, bath houses and dungeons...so it is not only prostitution but other places where people have sex in non-traditional ways.

This is a great day for sexual liberation ever.
posted by PinkMoose at 12:16 PM on September 28, 2010 [1 favorite]

While I am in agreement with the substance of this decision, we shouldn't be counting our chickens before they're hatched. The Crown is likely to be successful in getting a temporary stay on the effects of the decision, and since this is only a Superior court decision, it will be many years before it winds its way through the system to the Court of Appeal and ultimately the Supreme Court, who will be the final arbiters.

So, a good day, but far from the end.
posted by modernnomad at 12:22 PM on September 28, 2010 [1 favorite]

The original CTV coverage expanded on what mightygodking is talking about:

The overly broad interrelated provisions prevent hookers from properly screening clients, hiring security or working in the comfort and safety of their own homes or brothels, he said.

Body guards, drivers, business partners, or even roommates may all find themselves ensnared by the laws and even end up on the sex-offender registry because of their relationship with a prostitute, Young told Justice Susan Himel, who is hearing the week-long case.

"The law criminalizes others who participate in obvious strategies a sex worker may take protect herself."

But yeah, what modernnomad said. This is the beginning not the end.
posted by Durn Bronzefist at 12:24 PM on September 28, 2010

There is no slippery slope here. You can bet that most people who prostitute themselves have little consideration for the legality of it

There's no question that many people do it and aren't bothered by the fact that it's illegal. But that doesn't mean that the (il)legality doesn't affect how many people engage in it. If an activity is legal, it will become less costly to do. More people will engage in an activity if the costs are lower.
posted by John Cohen at 12:25 PM on September 28, 2010 [1 favorite]

My God. You don't say.
posted by Ouisch at 12:27 PM on September 28, 2010

Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to licence body-rub establishments despite the general understanding that many sell sexual services.

“We have this strange situation where the biggest pimps in the country right now are municipal governments,” Mr. Young told the court. “It's just another irrationality of the law.”

Amazing.
posted by Ouisch at 12:28 PM on September 28, 2010

From the little I know of this issue, I think I agree with the judge in believing it's a bad law that endangers people and it's not worth it. But my question is, since when are judges allowed to decide that a law is not valid not because it's unconstitutional or fails to be legal in some way, but because it's "too high a price to pay." Yeah, personally, he's probably right. But do we want judges to be throwing down laws they disagree with like this?
posted by brenton at 12:29 PM on September 28, 2010

That may be poor reporting, brenton. Won't know until we can actually see the judgment.

Law correspondants are often terrible at this.
posted by Durn Bronzefist at 12:32 PM on September 28, 2010

But my question is, since when are judges allowed to decide that a law is not valid not because it's unconstitutional or fails to be legal in some way, but because it's "too high a price to pay."

Er, all the time. The point here is that the law, like most laws, infringes on a citizen's right of expression. Thus we turn to constitutional law and say "is this infringement reasonable?"

There is nothing horribly newfangled about this sort of judicial reasoning.
posted by mightygodking at 12:35 PM on September 28, 2010

Why we have to keep relearning the lessons of Prohibition over and over again is beyond me.

Patriarchy + Puritanism: Still making hypocrisy great!

(See also: Gay sexxors is evil and must be outlawed by those who seek it's end!)
posted by yeloson at 12:35 PM on September 28, 2010

From the little I know of this issue, I think I agree with the judge in believing it's a bad law that endangers people and it's not worth it. But my question is, since when are judges allowed to decide that a law is not valid not because it's unconstitutional or fails to be legal in some way, but because it's "too high a price to pay." Yeah, personally, he's probably right. But do we want judges to be throwing down laws they disagree with like this?

Public policy considerations are an important part of jurisprudence.
posted by kafziel at 12:40 PM on September 28, 2010

The point here is that the law, like most laws, infringes on a citizen's right of expression.

What on both counts?

I don't see mention of a s.2 argument here. Second-hand framing has this as a s.7:

Mr. Young tried to prove that the women's constitutional right to life, liberty and security were jeopardized by repressive laws that exacerbate the perils of a notoriously hazardous profession.

And s.7 is not typically balanced against s.1 ("demonstrably justified in a free and democratic society" -- which in media parlance might work out to "too high a price to pay"), so something is a tad off here, but until we see the text of the judgment it's hard to know what.
posted by Durn Bronzefist at 12:44 PM on September 28, 2010 [1 favorite]

Public policy considerations are an important part of jurisprudence.
There is nothing horribly newfangled about this sort of judicial reasoning.

Ok... so what's the real reason this law was struck down? Certainly not "this law is stupid." Which is what the article seems to imply. If judges do regularly strike down laws for being stupid, they do it under language like being "unconstitutional" etc... not "being stupid." So what's the actual legal reason this law was struck down?
posted by brenton at 12:46 PM on September 28, 2010

Yeah, you guys beat me to it. I read this in the Globe today and tjought it obvious that either the reporter or his editors did not understand what the story was actually about. Prostitution has been technically legal in Ontario for quite some time: to paraphrase George Carlin, "Selling is legal. Fucking is legal. Why is selling fucking illegal?"
posted by ricochet biscuit at 12:47 PM on September 28, 2010

Hmm. Digging around in previous reports, looks like they argued both:

They are arguing that by forcing them to work in situations where they are prone to physical and psychological violence the legislation violates their right to security of the person under s. 7 of the Charter. They are also arguing that the prohibition against soliciting for the purpose of prostitution infringes their right to freedom of expression under s. 2(b) of the Charter, by limiting their ability to communicate with others for the purpose of prostitution. However, the primary argument the team of lawyers and sex workers challenging the law are raising is that if prostitution was legal and properly regulated, prostitutes would be safer.
posted by Durn Bronzefist at 12:55 PM on September 28, 2010

Discussion of the decision at TERB (Toronto Escort Review Board); may be NSFW.
posted by stinkycheese at 12:58 PM on September 28, 2010

I miss Canada. I lived in Vancouver BC for about 8 months and it was great to be in another country (even if my experience in said country was not very different from what US daily life is like for me).

If something is legal, then it should be legal.
If something is illegal, then it should be illegal.

I like debating the point. I don't like debating the point through side-attacks on something. This is true for:
* abortion (if it is legal, then why all of these laws making it nearly impossible to actually provide that service in our red states?),
* pot (if it is 100% illegal for nonmedical use, why the decriminalization/"lowest priority" laws? Why not legalize?),
* size of the federal government (why not propose specific cuts, rather than capping the federal government's spending at an arbitrary year's level?)
* and so on.

I'm not particularly against prostitution being illegal, though I'm not a personal fan of it. But if a society decides that something is "ok," why do people feel the need to cheat the intent of the will of the voters and make these side-attacks?
posted by andreaazure at 1:16 PM on September 28, 2010 [1 favorite]

stinkycheese: Discussion of the decision at TERB (Toronto Escort Review Board); may be NSFW

{Click...} {CLOSE!}

Yes, heed the warning guys. NSFW for banner ads at the least!


This is a great decision; as said above, it's not clear why the public and the legislators are really so dumb as to not get the lessons of prohibition, generation after generation, which is that the worst parts of any vice are the nasty elements that spring up by treating it as a crime- and driving it underground into the arms of the worst people in our society- as opposed to treating the small percentage of edge cases of abuse/harm as medical/psychological issues for far less money.

With drugs, most people use them responsibly; a small portion will become addicted or need sponsored care to break the habits that have taken over their lives. This is true today of legal drugs like alcohol, and the court-ordered treatment for DUIs, or voluntary treatment via AA and other resources, do work pretty well. Doing the same for other drugs would cost a fraction of what the DEA costs, add legal sources of tax revenue on sales, and the legality would remove the criminal elements here and abroad- the high prices and crime that comes along with it, the violence, the takeover of whole governments by ridiculously empowered cartels.

The same is true of prostitution: pimps are scum and should be punished as sex slavers; the drug addiction that drives some percentage of prostitutes to their trade should be treated as medical issues above, and everyone else should be free to be safe, communicative, and good consumers of a potentially healthy activity, if done well. There will still be prostitution's ugly edge cases- child prostitution, sex slavery, etc- and while they won't go away, they will become all the more visible and have motivated allies in eliminating them among all the now-legal prostitutes who either are morally offended like everyone else... or at worst simply don't want the competition.
posted by hincandenza at 1:17 PM on September 28, 2010

Statement on the decision by SPOC (Sex Professionals of Canada).
posted by stinkycheese at 1:20 PM on September 28, 2010

Niagara Falls will the new Las Vegas. It's already off to a great start.
posted by kuujjuarapik at 1:22 PM on September 28, 2010 [1 favorite]

From the little I know of this issue, I think I agree with the judge in believing it's a bad law that endangers people and it's not worth it. But my question is, since when are judges allowed to decide that a law is not valid not because it's unconstitutional or fails to be legal in some way, but because it's "too high a price to pay." Yeah, personally, he's probably right. But do we want judges to be throwing down laws they disagree with like this?

This goes to the heart of Canadian constitutional jurisprudence, which operates in a significantly different way than its American counterpart. If a Canadian court finds that a law violates a particular constitutional right, the government can nonetheless justify that violation by proving that the means it chose to limit that right were rationally connected to the stated purpose of the law, and the effects of this limitation were proportional to the goals. As a basic example, locking someone up in jail is a clear violation of their liberty, but that government can easily justify the reason they do that. For more info on this works see here.

What the Superior Court judge here said was that the government failed in its task of justifying why it had limited the constitutional rights of the women in question (ie, limiting the individual's right to free expression) , not that it was unconstitutional because it was 'too high a price to pay'. The constitutional violation was not saved by s.1 because the effects of the harm to women were high (violence, risky clientele, unsafe working environments) in proportion to the benefits of the law (social nuisance). I realise this may seem like splitting hairs, but in the Canadian legal world it is a vital difference -- courts cannot simply strike down any law they don't like just b/c they don't like it's effects; they must still first find the existence of a violation of the individual's Charter rights.
posted by modernnomad at 1:32 PM on September 28, 2010 [1 favorite]

Given how Niagara Falls tourism is now, this can only be an improvement.
posted by anthill at 1:32 PM on September 28, 2010

So, how does this effect Chester Brown?
posted by JBennett at 1:35 PM on September 28, 2010

Well brenton was on the right track. "Too high a price to pay" may have been the media's characterization or it may have been an actual quote of the bench. What it likely meant was that, if a s.1 analysis was carried out, the laws violated the minimum impairment test (as usual).
posted by Durn Bronzefist at 1:47 PM on September 28, 2010

* pot (if it is 100% illegal for nonmedical use, why the decriminalization/"lowest priority" laws? Why not legalize?)

That's political compromise, similar to this, though not exactly the same. Were we to actually decriminalize possession, you can bet we'd hang on to criminal prohibition of production, trafficking, and import/export.
posted by Durn Bronzefist at 1:50 PM on September 28, 2010

@modernnomad: that totally makes sense! Thanks for the explanation.
posted by brenton at 2:47 PM on September 28, 2010

hi Xoebe - Children and women will likely be far less likely to be victims of sexual coercion if the sex trade could be brought out into the open.

Except that the Swedish prostitution ban has resulted in a major reduction of sex-trade related evils. Although of course not everyone agrees.
posted by eeeeeez at 3:17 PM on September 28, 2010

So, the Swedes legalized prostitution, but not procurement - that's an interesting approach, and it seems to be doing what it is supposed to do. That's not precisely what I was thinking, but if the data are to be believed then whatever it takes to achieve increased safety for prostitutes is a good thing.

Personally I don't care if the procurement aspect is legal or not - I don't have a horse in that race, so to speak.

One of the major blocks to legalization of prostitution in the U.S. is the massive stigma attached to it. The strongest counterargument to legalization is the forehead slapping "Duh! Because it's bad!" response. The morality of a practice really has no bearing on if it should be legal or not, however. The consequences of making a practice illegal versus having it legal should constitute the measure of validity of a legal code.

You can safely bet that argument flies in the face of many of the politicians and voters in the U.S., where an intelligent, rational approach to a solution will be immediately dismissed as effete European intellectualism. Perhaps a marketing campaign is in order to promote prostitution as a conservative, patriotic practice, or a good Christian habit is what we need.
posted by Xoebe at 4:22 PM on September 28, 2010

There's been a whole load of 'prostitutes hit by recession' stories in the last two years, one of them was a whole load of complaining that clients are haggling over prices and too many amateurs are competing. Haggling with prostitutes is just one of the saddest things I ever heard of, that's a serious lack of self respect right there.

But yes, all the backdoor harrassment of people involved in a legal activity is very weaselly. Either make it illegal or don't, there's no point mithering people to within an inch of their lives just because you can't bring yourself to admit a ban is unworkable.
posted by shinybaum at 8:04 PM on September 28, 2010

I'm not particularly against prostitution being illegal, though I'm not a personal fan of it. But if a society decides that something is "ok," why do people feel the need to cheat the intent of the will of the voters and make these side-attacks?

The "will of the voters" is a terrible way to ensure freedoms. "The will of the voters" is a phrase that whitewashes the concept of the "tyranny of the majority," and is used as a cover to let bigotry continue for far too long. It's very easy to lead someone along in a conversation and get them agree that if it's not hurting anyone, an activity should be legal. Then, not 2 topics later, they'll spout some judgmental nonsense about how a ____ was "asking for it," and shouldn't have become/acted as a ____.

I don't trust the American people to vote as though prostitutes are people. I'm not sure I trust the courts either, but I'd take my chances with a judge and a good lawyer rather than the whims of the voting process.
posted by explosion at 8:46 PM on September 28, 2010 [1 favorite]

More people will engage in an activity if the costs are lower.

I, for one, will be looking for the cheapest whore possible.
posted by Mental Wimp at 8:55 PM on September 28, 2010

Metafilter: backdoor harrassment
posted by nightchrome at 11:55 PM on September 28, 2010

The morality of a practice really has no bearing on if it should be legal or not, however.

You may not agree with the particular set of morals that deem prostitution morally objectionable, but to say that morality has no bearing on legality, well, is not even wrong.
posted by eeeeeez at 2:17 AM on September 29, 2010

Screw Vegas--Viva Toronto!

oh, right, like you weren't thinking it
posted by Halloween Jack at 4:00 PM on September 29, 2010