The 2012 Prostitution Appeal Decision – An Expression of Gratitude

On March 26, 2012 five judges of the Ontario Court of Appeal ruled on the governments appeal of the 2010 decision of Justice Susan Himel, which struck down the three laws seeking to prevent prostitution, whatever that is. Those laws were against living off the avails of prostitution, keeping a bawdy house for prostitution and communicating for prostitution.

First, the court upheld Justice Himel on the avails provision, so basically prostitutes can now have security, chauffeurs, accountants, landlords and so forth. Second, they told Parliament it would have to rewrite the bawdy-house provision to remove the reference to prostitution within 12 months or the provision falls. And third, they left the communicating provision intact, although the judges split 3-2 on that.

The media recognized that the Court has essentially legalized brothels in Ontario and thrown the matter to Parliament. Remember, the communicating provision remaining intact is essentially to deal with street prostitution and the penalties so minor as to be on the level of a traffic ticket. Police officers sympathetic to us have told my supporters that they are no longer going to act against indoor prostitution because it is prostitution, whatever that is.

This is an historic victory because it shows that we were right about the laws being unfair for a whole host of reasons and have now ensured that the debate will not be suppressed and changes will come. In the coming weeks I will be writing about fairness in any new laws that might be brought in. However, for now, I want to express my gratitude to many wonderful people.

Professor Alan Young has worked on this case for a decade, and against these laws for years before that. He supervised, in my estimate, about 50 students who assisted as part of their studies. He had to advocate for funding. He devoted summers and worked extra hours when he had teaching duties. He did this on the heels of publishing his wonderful book profiling the terrible shortcomings in our legal system. He defended me in the past when I was arrested under these laws despite offering no sex. He has inspired scholarship and advocacy in an area of the law desperately crying out for attention from governments. The Order of Canada award was created for people like him.

My fellow plaintiffs Amy Lebovitch and Val Scott deserve the nations thanks for coming forward and exposing their private lives and taking a position, so as to make the challenge legally viable. They have stood against these laws for years prior to this challenge coming to maturity. They have walked the walk in every way. Val has also served as Executive Director of the Sex Professionals of Canada (SPOC), and as such has led others who have helped to work towards more fairness in these laws and in societys treatment of sex workers. Val has been an amazing spokesperson. Nikki Thomas has succeeded Val and has also spoken for the current initiative with amazing insight and effectiveness.

I also want to pay my thanks to lawyers besides Alan who have represented me and assisted me in the past, and generally enabled me to carry on and tell my story. As they defended me or represented me in appeals and other ways they too fought these laws. I will, as I have in the past, list them now in the order they participated and they all have my gratitude: Ken Danson, Morris Manning, Theresa Simone, Murray Klippenstein, Charlie Campbell, George Callahan, Leah Daniels, Paul Burstein, Justice David L. Corbett and Sender Herschorn. Their assistants and staffs are not to be forgotten either.

Finally, let us not forget the many activists from the past. There have been coalitions in the past seeking to amend the bawdy-house and related laws. In the middle 1990s Robert Dante headed up the coalition formed after I was raided. Andy Anderson and the late Richard Hudler and so many others over the years are not to be forgotten. Their stories will be told, and it is my intention to do so or see that it is done. This is their victory too. Long live freedom.

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Himel Decision – III

Here is more of what the judge wrote:

It is important to state at the outset what this case is not about: the court has not been called upon to decide whether or not there is a constitutional right to sell sex or to decide which policy model regarding prostitution is better. That is the role of Parliament. Rather, it is this court’s task to decide the merits of this particular legal challenge, which is whether certain provisions of the Criminal Code are in violation of the Charter … The fact that prostitution is a controversial and complex issue is not a bar to Charter review. I find the words of Rowles J.A. instructive in his concurring reasons… ‘…the resulting legislation, like all laws, is subject to constitutional limits… The fact that the matter is complex, contentious or laden with social values does not mean the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it. As this court has said on a number of occasions it is the duty of this Court to ensure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.’ (Paragraph 25)

*

“In my view the analysis conducted in the Prostitution Reference ought to be revisited given the breadth of evidence that has been gathered over the course of the intervening twenty years. Furthermore, it may be that the social, political, and economic assumptions underlying the Prostitution Reference are no longer valid today. Indeed, several western democracies have made legal reforms decriminalizing prostitution to varying degrees. As well, the type of expression at issue in this case is different from that considered in the Prostitution Reference. Here, the expression at issue is that which would allow prostitutes to screen potential clients for a propensity for violence. I conclude, therefore, that it is appropriate in this case to decide these issues based upon the voluminous record before me. As will become evident following a review of the evidence filed by the parties, there is a substantial amount of research that was not before the Supreme Court in 1990.” (Paragraph 83)

*

“According to reports commissioned by the Ministry of Justice, Dutch decriminalization has been moderately successful in improving working conditions and safety in the legal practice of prostitution. The reports suggest that the women working the licensed sector are neither underage nor exploited. Sexually transmitted diseases are now less prevalent among prostitutes than among the population at large, and free anonymous health services are available within Amsterdam’s Red Light District. Approximately 90 per cent of reported incidents of violence against prostitutes are against women working illegally. These reports conclude that the supply of and demand for prostitution in the Netherlands has decreased since the legislative changes”. (Paragraph 188)

*

“Despite the multiple problems with the expert evidence, I find that there is sufficient evidence from other experts and government reports to conclude that the applicants have proven on a balance of probabilities that the impugned provisions sufficiently contribute to a deprivation of their security of the person (Paragraph 359). I accept that there are ways of conducting prostitution that may reduce the risk of violence towards prostitutes, and that the impugned provisions make many of these ‘safety-enhancing’ methods or techniques illegal. The two factors that appear to impact the level of violence against prostitutes are the location or venue in which the prostitution occurs and individual working conditions of the prostitute (Paragraph 360) … prostitutes who attempt to increase their level of safety by working in-call face criminal sanction … prostitution may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally s213(1)c) prohibits street prostitutes … from screening clients at an early, and crucial stage of a potential transaction, thereby putting them at an increased risk of violence (Paragraph 361). In conclusion, these three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduced the risk of such violence.” (Paragraph 362)

*

“The applicants argue that a blanket prohibition on indoor prostitution is a complete disregard for the legitimate needs of prostitutes who wish to increase personal safety and security, and that this blanket prohibition unnecessarily exposes prostitutes to an increased risk of violence … (Paragraph 397). The issue is whether the provisions are necessary to achieve the state objective, which I have found to be eliminating neighbourhood disorder and a concern for public health and safety (Paragraph 398). To convict a person of a bawdy-house offence, none of the harms the provision is aimed at need to be shown, such as neighbourhood disorder, or threats to public health or safety. The evidence from both parties demonstrates that there are few community complaints about indoor prostitution establishments. In my view, because they assign criminal liability to those direct participants of bawdy-house prostitution who do not contribute to the harms Parliament seeks to prevent, the bawdy-house provisions are overly broad as the restrict liberty and security of the person more than is necessary to accomplish their goal.” (Paragraph 401)

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Himel Decision – II

Here is some of what the judge wrote. “Prostitution per se is not illegal in Canada, although many prostitution related activities are prohibited by provisions in the Criminal Code. The applicants’ case is based on the proposition that the impugned provisions prevent prostitutes from conducting their lawful business in a safe environment (Paragraph 8). With respect to s.7 of the Charter, the applicants argue that not only do the impugned provisions violate liberty….but also security of the person as the operation and intersection of the impugned provisions materially contribute to the violence faced by prostitutes (Paragraph 10). Under s.210, the bawdy-house provisions, it is illegal to conduct prostitution in an indoor location on a habitual and frequent basis. The applicants maintain that the evidence demonstrates that violence is significantly reduced or eliminated in most indoor settings. Under….the living under the avails of prostitution provision, the applicants argue the it is illegal to hire managers, drivers, and security personnel and that these type of services can reduce or eliminate the incidence of violence faced by prostitutes. Finally it is illegal….to communicate in public for the purposes of prostitution. The applicants take the position that this prohibition has compelled prostitutes to make hasty decisions without properly screening customers when working on the streets, thereby increasing their risk of danger (Paragraph 11).

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Himel Decision – I

Very soon now the Ontario Court of Appeal is going to release its decision on the appeal, by the Federal and Provincial Governments and various intervenors, of Judge Susan Himel’s 131 page decision striking down Canada’s laws against prostitution. In the next 9 blogs it is my intention simply to quote some of what the judge said, and I will give you the paragraph of the decision from which I am quoting so you can see for yourself the context in which she said it. I hope doing so will raise the level of public discussion on what will happen if her decision stands. You can read the decision by going to my website madamedesade.com, or you can read my book Dominatrix on Trial. In my book, in Chapter 19, I summarize what the judge wrote.

Terri-Jean Bedford
http://DominatrixOnTrial.com

How the Laws and Courts Have Treated Me

I have had a few experiences with the law and the courts. The public has been very sympathetic on the whole. For example they keep asking, about my previous trials: “What was the crime if there was no sex?” They have also been very supportive of my tenacity in fighting the laws which are so unfair and dangerous. However up until recently the courts have not been fair. Judge Himel’s ruling in 2010 striking down the prostitution laws finally recognized the unfairness of the laws. Before that the judges, in the main, were not only unsympathetic, but unfair bordering on corrupt.

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Unfairness in Canada’s Prostitution Laws

I was asked in a recent on-line interview how the current case involves fairness in the prostitution laws. The judge who struck down the laws in 2010 was clear. The laws discriminate against women. The laws allow a segment of society engaged in legal activity from protecting themselves, while participants in other legal activities are not prevented. The laws are vague as to what, prostitution, is and is not. Laws also need to be clear to be fair. The judge also said it is up to Parliament to write and pass laws telling people what they can and cannot do in their sex lives or fantasy role play, and what they can and cannot do to protect themselves in doing so. I have written about this in my book Dominatrix on Trial.

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Influence of the Pickton Inquiry on My Case

The Robert Pickton inquiry has brought up issues that we have been talking about for a long time, issues of security, and problems with victimization, among others. The Picton matter already has, in my view moved people and hopefully the Court of Appeal to rule against the government. The government is appealing our victory. I think they are pissing against the wind. A number of other cases such as the safe site injection rulings, the rulings against mandatory minimum sentences and the public blowback against internet snooping powers for the government without warrants have also demonstrated that Canadians don’t like being controlled in their private lives, and want to be free to protect themselves when doing things, like prostitution, that are legal.

Terri-Jean Bedford
http://DominatrixOnTrial.com

Is Prostitution an Issue? – Dominatrix on Trial

In a recent on-line interview I was told that people call prostitution an “issue”. They wanted to know what I thought of that. I told them that prostitution, whatever that is, is booming. It will boom no matter what public policy is. A significant portion of the population wants the freedom to pay for and be paid for acts of prostitution and do so with the safety and choices available to participants in other legal activities. So prostitution is not an issue in that sense. The issue is Canada’s Prime Minister – Steven Harper – and his unwillingness to tell consenting adults what they can and cannot do in private. He lacks courage. He says prostitution is bad, yet won’t define it or make it illegal. He seems to lack the ability, as well as the courage, to deal with this. He just wants the current laws, ruled unconstitutional, to remain in place.

Terri-Jean Bedford
http://DominatrixOnTrial.com

The Remaining Legal Battle – Dominatrix on Trial

I was recently asked in an on-line interview what remains of the current legal battle. First of all the term sex work is too vague. Exactly what acts are we talking about? The current case before the courts has all parties agreeing that prostitution (whatever that is) is legal. It was legal going into the case. The government wants to keep some of the things prostitutes and those who work in the business do to conduct prostitution illegal. What is likely to happen is that the courts will tell the government to be more specific about what people can and cannot do in private with full consent for money or other payment? Then the real fight begins.

Terri-Jean Bedford
http://DominatrixOnTrial.com

How the Prostitution Laws Affect the Average Person

I presume you mean the laws that were struck down, but tentatively being kept in place. These laws impact few because they are under-enforced; as the judge who struck them down pointed out. New similar laws will also be disobeyed. But for those who the authorities wish to target, as they did me in the 1990’s, the laws are a tool for the police to impose morality and target individuals. Indeed, the disgusting presence of “morality squads” over the years should make any thinking person sick. I don’t think being a student is a distinguishing factor in this matter. The people can be most effective by communicating their opposition to any attack on our freedoms the way the reaction to the internet snooping laws arose. They can also send money to organizations that are fighting the fight, such as the Sex Professionals of Canada (SPOCspoc.ca).

Terri-Jean Bedford
http://DominatrixOnTrial.com