The Court has granted the government’s request for an extension of the 30 day stay on the date on which the living on the avails of prostitution law was to fall. This is reasonable and expected, since it was only this week that the government advised the court that they wanted to appeal our victories. However, the court will, within 30 days, unless the extension is again extended a bit, not have the excuse that they have not had a chance to familiarize themselves with the matter of whether the stay should be extended while the court decides whether to hear any appeals. It is going to get very interesting. Watch.

Terri-Jean Bedford
http://DominatrixOnTrial.com

This afternoon, Wednesday April 25th, the government announced and served notice that it will be seeking leave to appeal the Ontario Court of Appeal’s decision to uphold the Himel decision striking down two of the three laws which the government believed worked against prostitution and for women, and which six judges agreed was unconstitutional. They also want to extend the stay on the judicial decisions, meaning keep the old laws in place for now, again. The judges said Parliament has work to do. But the government just doesn’t get it. They will. Watch.

Terri-Jean Bedford
http://DominatrixOnTrial.com

A number of police forces have already greatly curtailed their activities against indoor prostitution, whatever that is. Some supporters have told me that senior police officials have said that there is little practical purpose in enforcing laws that have already been struck down twice and were under-enforced to begin with. So even if there is an appeal of the second striking down of the laws against living on the avails and keeping a bawdy house for prostitution, there seems to be a recognition that the old laws are done for. There is also public support, of about 2 to 1, in favour of the Court of Appeal’s decision, based on polls I have read about. The silence of certain media on the issue speaks volumes. We won and we were right.

Terri-Jean Bedford
http://DominatrixOnTrial.com

There is an important aspect about appeals that people often overlook. The time from a decision to the date the judgement takes effect is called a stay. For example the current decision by the Ontario Court of Appeal put a 30 day stay before the living on the avails law is changed and a 12 month stay on the dropping of the bawdy-house law against prostitution. An appeal to the Supreme Court will take more than 30 days so the Supreme Court must grant an extension of the stay or the law is dropped even if another appeal is heard. So decisions are about to be made soon by a number of parties, or things will change.

Terri-Jean Bedford
http://DominatrixOnTrial.com

The issue of what legal steps remain to the parties in the prostitution challenge is complex and often technical. For one thing, the Supreme Court is not obliged to hear an appeal of the decision of the Ontario Court of Appeal. For another, it is a very big task to mount an appeal, and not cheap. For yet another, the side appealing may actually have something to lose if the Supreme Court finds more issues with the Appeal Court decision than the appellant raised. The Federal and Ontario governments are reviewing it and so are we. Until these discussions are concluded and positions are taken I don’t want to speculate on whether the court phase of this debate on what Canada’s prostitution laws should be is over.

Terri-Jean Bedford
http://DominatrixOnTrial.com

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

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

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