Oh, Canada’s Supreme Court! North of the Bordello Border, Harm Reduction Legalizes Some Prostitution


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What a big day it has been for the world’s justice systems!

I won’t even get into a Utah federal judge finding that state’s ban on marriage equality unconstitutional, or Russia’s Vladimir Putin’s pardoning, among others, both 2/3 of Pussy Riot and a billionaire political opponent – because as big as those stories are the biggest positive one may have happened just north of our border: Canada’s Supreme Court has struck down as unconstitutional anti-prostitution laws that increase danger to prostitutes and their clients.  And that description applies to most such laws.  (The most significant negative judicial development of the day — Uganda finally passing its draconian anti-gay legislation — is bigger still, but we’ll leave that for another time.)

Using the same sort of “harm reduction” logic that allows people to favor legalization of marijuana without necessarily encouraging its use, Canada’s Supreme Court noted that if the laws are leaving everyone except the most rotten people involved worse off, there’s something wrong with them.  The invalidation of the laws, however, is suspended for one year, to allow municipalities and provinces to figure out how to implement it.  (Still, it would be a particularly twisted prosecutor who continued to prosecute prostitution crimes that don’t involve sex-trafficking, beatings by pimps, and the like in the wake of this ruling.)

Here’s the brunt of the synopsis of Canada vs. Bradford — only after which do you get to the story illustration:

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.  It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Referencethat s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.  However, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach.  The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.  In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7, as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone.  Furthermore, the principles of fundamental justice considered in the Prostitution Referencedealt with vagueness and the permissibility of indirect criminalization.  The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years.  The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression.  That issue was decided in the Prostitution Reference and was binding on her.

The application judge’s findings on social and legislative facts are entitled to deference.  The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.

The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7.  The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge.  The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity.  They do not merely impose conditions on how prostitutes operate.  They go a critical step further, by imposingdangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.  That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution.  While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.  The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice:  principles that attempt to capture basic values underpinning our constitutional order.  This case concerns the basic values against arbitrariness (where there is no connectionbetween the effect and the object of the law), overbreadth (where the law goes too far and interferes with someconduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).  These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective.  All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted.  The analysis is qualitative, not quantitative.  The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.  The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.  Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage.  The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.  It also includes anyone involved in business with a prostitute, such as accountants or receptionists.  In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.  The living on the avails provision is consequently overbroad.  Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause.  The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the analysis.  In particular, they attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships.  However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non‑exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.  The impugned laws are not saved by s. 1.

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.  The regulation of prostitution is a complex and delicate matter.  It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.  Considering all the interests at stake, the declaration of invalidity should be suspended for one year.

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.  It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Referencethat s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.  However, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach.  The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.  In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7, as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone.  Furthermore, the principles of fundamental justice considered in the Prostitution Referencedealt with vagueness and the permissibility of indirect criminalization.  The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years.  The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression.  That issue was decided in the Prostitution Reference and was binding on her.

The application judge’s findings on social and legislative facts are entitled to deference.  The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.

The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7.  The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge.  The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity.  They do not merely impose conditions on how prostitutes operate.  They go a critical step further, by imposingdangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.  That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution.  While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.  The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice:  principles that attempt to capture basic values underpinning our constitutional order.  This case concerns the basic values against arbitrariness (where there is no connectionbetween the effect and the object of the law), overbreadth (where the law goes too far and interferes with someconduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).  These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective.  All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted.  The analysis is qualitative, not quantitative.  The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.  The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.  Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage.  The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.  It also includes anyone involved in business with a prostitute, such as accountants or receptionists.  In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.  The living on the avails provision is consequently overbroad.  Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause.  The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the analysis.  In particular, they attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships.  However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non‑exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.  The impugned laws are not saved by s. 1.

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.  The regulation of prostitution is a complex and delicate matter.  It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.  Considering all the interests at stake, the declaration of invalidity should be suspended for one year.

They have it exactly right: exploitation and harm, rather than prostitution per se, are the problem.  Criticize prostitution all you want — but that’s different from making it illegal.

Now we have to watch out for the other side of the sword, in which some people may say that “well if prostitution is to be legal then that’s what we should require poor women to do to feed their families.”  The idea is to oppose duress and coercion — and that applies the opinions of political pundits as much as it does to actions of pimps.

sexy mountie costume

Source of photo: http://www.sparklingstrawberry.com/products/Mountie-Girl-Costume.html. OJB has no reason to believe that the model is in any way associated with prostitution and regrets the fact that a few of you are inevitably going to “go there” anyway.


About Greg Diamond

Prolix worker's rights and government accountability attorney and General Counsel of CATER. His anti-corruption work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, leading them to work with the Democratic Party of Orange County Chair and other co-conspirators (who had long detested the internal oversight his presence provided) to remove him from the position of DPOC North Vice Chair of in violation of party rules and any semblance of due process. He also runs for office sometimes. Unless otherwise specifically stated, none of his writings prior to that lawless putsch ever spoke for the Democratic Party at the local, county, state, national, or galactic level. He tries to either suppress or openly acknowledge his partisan, issue, ideological, and "good government" biases in most of his writing here. If you have a question about any particular writing, just ask him about it and (unless you are an pseudonymous troll) he will probably answer you at painful length. He lives in Beautiful Bountiful Brea, but while he may brag about it he generally doesn't blog about it. A family member works as a campaign treasurer for candidates including Wendy Gabriella in AD-73; he doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. He does advise some campaigns informally and (except where noted) without compensation.