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 Furthermore, it may be that the social, political, and economic assumptions underlying the Prostitution Reference are no longer valid today.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

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