09.29.2010 08:58 AM

Red light web site

Good.  That judgment was absurd.  Judges attempting to determine social policy instead of the law.  Never good.

***

Prostitution law appeal expected by feds and Ontario will support them: McGuinty (Bawdy-Law-Appeal)

TORONTO – Ontario Premier Dalton McGuinty says he would be surprised if the federal government did not appeal a court ruling striking down Canada’s prostitution laws.

The Ontario Superior Court ruled that laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade put sex-trade workers in danger.

McGuinty says the ruling proposes some profound changes to laws that have been on the books for decades, and Ontario “looks forward” to supporting the federal Conservatives in the expected appeal.

The Superior Court judgment is subject to a 30-day stay during which the law remains in place, and the federal government can seek an extension of the stay period.

Justice Minister Rob Nicholson signalled last night that the Conservatives are seriously considering an appeal.

He says Ottawa would “fight to ensure that the criminal law continues to address the significant harms that flow from prostitution to both communities and the prostitutes themselves.”

37 Comments

  1. Paul R. Martin says:

    Do judges have the right to ignore the wishes of Parliament? Do Human Rights Tribunals have the right to tell universities (University of Windsor) who they should hire as the Dean of the Law School? Some things seem to be out of wack in Canada.

  2. Richard says:

    No wonder things are so bad in Australia. Prostitution is legal there.

  3. hitfan says:

    Even Kinsella and McGuinty don’t want to be tainted as being “pro-prostitution”. That “dominatrix” they keep showing on TV is hardly a good advocate for her cause. I thought sex workers were supposed to be, for one thing, actually attractive?

    As a cynical observer, I will take a counter-intuitive view of this.

    Considering that the public at large does not like prostitution (hence why there is political will for anti-solicitation laws that are on the books), if they fully legalize it (with reasonable restrictions where city planners can restrict those “bawdy houses” to certain designated areas), they could tax the hell out of it at the same time.

    Basically, let the government become the pimp and reap the taxation revenue rewards. I also think they should do the same with pot.

    The Conservatives would be the most credible in creating a tax stamp authority for pot and hookers because they have built anti-pot and anti-hooker credentials since time immemorial. Let them be the “progressive” ones in this case, get praised for being so forward-looking while imposing taxes on these activities and cash in.

    If the Liberals and the NDP tried this, they would be crucified publicly–and rightfully so.

    Just as “Only Nixon could go to China” as the Vulcans used to say, I will add that “Only the conservatives can legalize unpopular vices and tax the hell out of them”.

  4. Cecil Palmerston says:

    As prostitution itself is not illegal, this ruling was about worker safety; not morality.

  5. “Do judges have the right to ignore the wishes of Parliament?”

    Yes, they do. One of the functions of the courts is to protect the people from government legislation that infringe on their constitutional and charter rights. This check on government power is essential to a healthy democracy.

  6. Art Williams says:

    Judges don’t determine social policy. They throw out bad laws. Parliament has the right to institute new, constitutional laws whenever it wants.

    • Paul R. Martin says:

      Obviously I am not a lawyer; however, I believe that there have been some recent cases in which the Supreme Court sided with Parliament.

      • Namesake says:

        right… maybe because the current gov’t passes ill-considered, poorly framed laws. See a pattern there?

        • Pedro says:

          Namesake,
          just wondering…did this current government pass the law(s) which the current judge decided were unconstitutional?

          • Namesake says:

            um, yeah, I believe they did: the bawdy house bit was part of their ‘Stamp out organized crime’ bid to fill their new prisons this year, was it not? Like that Dominatrix caught in the Dragnet who was operating out of her living room would make it safe to walk the streets again, except, er, it actually made her unsafe by making her walk the streets.

        • xllnt says:

          Namesake’s assertion that the “common bawdy house” provisions in the Criminal Code were introduced by the Harper government is incorrect – those provisions have been part of the Criminal Code since it was first introduced in 1892.

          • Namesake says:

            um, that’s not exactly what I asserted, now is it:

            I said there was a new bawdy house bit as part of their new “these are serious, now” anti-organized crime laws this summer, which it was:

            http://www.thestar.com/news/canada/article/843768–ottawa-steps-up-fight-against-organized-crime

            ‘course, whether that’s the actual one under review, now, who knows (I believe I signalled I didn’t, and, gee, I’d have to actually do some work to find out),

            …but somehow I doubt they’d wait until 2010 to be contesting that 1892 statute.

          • xllnt says:

            To quote:

            Pedro: “did this current government pass the law(s) which the current judge decided were unconstitutional?”

            Namesake: “um, yeah, I believe they did: the bawdy house bit was part of their ‘Stamp out organized crime’ bid to fill their new prisons this year, was it not?”

            That’s an assertion that the current government’s change to classification of the bawdy house law was what was ruled unconstitutional. That assertion is incorrect. The bawdy house law which was ruled unconstitutional is the original bawdy house law, first introduced in 1892. The case in question was commenced in 2009, more than a year before the Harper government altered the treatment of bawdy house offences. The recent decision has nothing to do with the Harper changes to the bawdy house law, and those changes were not considered by the court (since they weren’t relevant to the issues under consideration).

          • Namesake says:

            A question (“was it not?”) is an assertion?

            But, okay (watch carefully how this works, Conservatives …you don’t have any role-models for this, anymore):

            Sorry, I was wrong in even _believing_ such a thing.

            Turns out the roots of this case go much further back: to 1995, in fact, to his/her* first trial, and was first appealed to (& blown off by) the Supreme Court in ’97;

            and it’s mainly been contesting Sections 210 (bawdy house), Section 212 (1)(j) (living on the avails) and Section 213(1)(c) (communication for the purpose),

            which seem (but I could be wrong! don’t get too excited!) to have been enacted in 1985.

            * Terri-Jean Bedford, whose “Bungalow ha[d] several rooms catering to adult fantasies such as cross-dressing, bondage and infantilism” http://www.madamedesade.com

            But it wasn’t my imagination that the new laws may have had a role in tilting the decision in their favour;

            Antonia Zerbisias raised a flag about it this summer,* and is still tying them together now.**

            I’ll leave it to the more indignant to read through the whole 130 page legal decision to disprove this lingering suggestion that the new law could have _possibly_ had anything to do with this Judge’s finding that the current laws violate people’s rights to security, though.

            * http://www.thestar.com/news/insight/article/853114–bawdy-politics-critics-say-new-regulation-endangers-sex-workers-lives

            ** http://thestar.blogs.com/broadsides/2010/09/bawdy-politic.html

          • Pedro says:

            Namesake, you had yourself at “um, yeah, I believe they did:”
            shoulda stopped then
            it’s all about the believin’

          • Namesake says:

            I just can’t help believin’

  7. miguel says:

    I really enjoyed the blog

    If I take care not to promote my new blog where I expose my drawings http://www.thesearemydrawings.blogspot.com
    see and comment

    thanks

  8. Be_rad says:

    WK,

    As an outspoken advocate for, and user of, fora that protect human rights and defend against hate speech, how is it consistent for you to say a court cannot come to the conclusion – ever – that a law is unconstitutional? As McClelland points out above, the decision, as Allan Young said, is not about prostitution, per se: “The case does not solve the problems related to prostitution, he said. That’s for your government to take care. Courts just clean up bad laws.”

    I think I need to know more about the issue to judge it. Instinctively, I belive in individuals being allowed to make choices, even bad ones, when it does not directly involve infringing on someone else’s rights. However, I have seen interesting claims that in European countries where there is a permissive or legalized regime towards bawdy houses that coerced girls from poor regions are transported and forced to work against their will.

    • Warren says:

      Fine. I’m asking everyone here to help fund a bawdy house, opening up right beside “be rad’s” domicile! What say you, big guy?

      • Derek Pearce says:

        That was a rather simplistic answer and it didn’t answer Be Rad’s question. If bawdy houses were licensed and zoned then the location of them relative to one’s home would be as much an issue as where to put any other business– and this would likely be a quieter, don’t-draw-attention-to-itself kind of business anyhow.

        So, as Be Rad asked you, is it possible for a court to come to the conclusion that a law is unconstitutional? I know I can thank the courts for the fact that I have equal protection from discrimination and can marry my partner. Legislatures were certainly going to drag their cowardly heels on that stuff if they hadn’t been forced (or given cover by) courts.

      • Be_rad says:

        Naturally, I’m not keen on your suggestion. In my brief note to you, I indicated that while my philosophical instincts say one thing, I recognize that there are pragmatic considerations as well. I used human traffikking, but NIMBY is a good example too.

        I know you believe in human rights, the Charter of Rights and Freedoms and the importance of protecting minority interests. You have been a fierce opponent of hate speech and used tribunals and criminal and civil proceedings to achieve your objectives. So I wonder how you reconcile that with what sounds in your original post more like a typical Reform attitude about activist judges. I’m sorry if my original question made it sound like I was being sarcastic or derogatory, I actually wanted to know.

        If they had the jurisdiction and if they got the arguments right and if the women involved in the Trade were having their rights infringed, how could the court come to a different conclusion? As I quoted Young above “That’s for your government to take care of”. Presumably he meant without so endangering these women that their rights are violated.

  9. Terry says:

    Stuff and nonsense. This is what judges do. They take evidence and they make judgments based on that evidence. That’s what a constitutional democracy is.

  10. smelter rat says:

    Like alcohol, sex and drugs should be decriminalized, regulated, licensed and taxed. Maybe not a perfect solution, but better than the various “wars on ____” that clearly don’t work.

  11. JamesF says:

    Warren,

    I have to say that I disagree with your comments. The judge was determining “The Law” she was being asked to determine whether or not the communication and bawdy house laws lead to the violation of an individuals charter rights. In her judgement they did… that is her doing her job. Did she get it wrong? Maybe, that’s what the appeal will determine but it’s untruthful to say that she wasn’t doing her job.

  12. Art Williams says:

    Warren, most people don’t like bars, strip clubs or adult video places near their homes. We don’t make those places illegal, we zone them. Why should this be any different?

  13. KC says:

    Are there ANY issues on which WK isnt in favour of government control and opposed to freedom? Most authoritarian “liberal” I’ve ever encountered.

  14. AT says:

    C’mon WK,

    Libs everywhere should be applauding this judgement. Justice Himel’s judgement protects women in the oldest and most dangerous profession in the world. At the same time it eliminates anachronistic and hypocritical CC sections. Protecting women and updating our legal regime to reflect reality, that’s what my Lib party is about.

    Not to mention the fact that Judges taking a more active role in policing Parliament is a direct result of the LPC’s courageous innovation w/ the Charter.

  15. Blair Shumlich says:

    I like what AT has to say. It’s the world’s oldest profession. Much like poverty, it isn’t going away. What we should be doing is helping these people live better, safer lives– that’s what being Liberal is about, isn’t it? These laws harm our most vulnerable; a moral crusade against this is no different than a moral crusade against homosexuality which, I would hope, Liberals would be in arms about. Let’s stand up for our downtrodden and do what we can to make their lives better.

  16. H Holmes says:

    The thought that legalizing bawdy houses is good for society is laughable.

    All this will do is encourage more immigrants to work in now legal massage parlors instead of strip clubs.

    I am sure a few people might find some benefit, but a large percentage of street workers will not work in a legal brothel.

    Prostitutes that have HIV or other social diseases will not be allowed to work in a legal brothel and nether would drug addicts, or girls under legal age.

    This is by far the largest amount of prostitution and these people would be working out side of the law anyway.

    This is one of the most short sighted judgments that I have seen. We need to solve the social issues related to prostitution, this doesn’t help.

    • Namesake says:

      actually, tho’, on Power & Politics yesterday, someone who actually seemed to know something about this stuff was saying the opposite:

      that the vast majority of prostitutes already work discretely, indoors, for escort services & massage parlours etc, where it was legal (until this ‘not if they have 3 owners’ bit was introdcced, which made it “organized crime”), so long as they don’t communicate, etc…. whereas it’s a small percentage who are on the streets.. the type which, as you say, wouldn’t get hired by these other places. And that was the judge’s beef about the new law, is what I’ve gathered: that it would force them all out on the street, plus make it far less likely that they would complain to the police about violent Johns & more Picktons afoot.

      • H Holmes says:

        I really don’t think that the cops are going to bust down the doors of a single proprietor working in her house.
        There are much bigger cases to work on first. The biggest being brothels run by organized criminals that would now be legal, full of immigrants brought in for the sex trade.

        This is the issue related to the sex trafficking of women and the protection of street workers.

        Which is made worse by a bill like this, because no there is no protection for the women that are involved in sex trafficking and the women working on the streets are still not protected.

        http://toronto.ctv.ca/servlet/an/local/CTVNews/20100913/human-trafficking-report-100913/20100913/?hub=TorontoNewHome

        The majority of human-trafficking convictions in Canada between 2005 and 2009 involved victims who were brought to Canada to work in the illegal sex trade, RCMP say in a new report.

        The report, entitled “Human Trafficking in Canada: A Threat Assessment,” was prepared for the RCMP’s Immigration and Passport Branch to provide the Mounties with an overview of human trafficking activities in Canada, as well as the extent of organized crime involvement in the practice.

        Looking at data from investigations between 2005 and 2009 that had human trafficking elements, the Mounties found that:

        * Recent convictions for human trafficking have mostly involved victims who are citizens or permanent residents of Canada “trafficked for the purpose of sexual exploitation.”
        * Human trafficking for sexual exploitation is largely associated with organized prostitution occurring behind fronts, such as escort agencies and residential brothels.
        * Many human trafficking suspects are linked to other organized crime activities, such as credit card, mortgage and immigration fraud, prostitution and conspiracy to commit murder.

        The report found that human traffickers exploit Canada’s immigration policies to bring foreign workers into the sex trade. Criminal groups use passports from travel visa-exempt countries, such as Israel, Estonia, Latvia and Korea, to bring victims to Canada.

        The report also says the majority of Asian nationals found working in bawdy houses arrived in Canada on visitor or student visas, and many had stayed past their expiration dates.

        • Namesake says:

          Hey, no argument here: I’m not saying greenlight all the red lights, just that there are a lot of issues to sort out, here, and there may indeed be some counter-productive aspects of the current laws that should be revised (as with the gun registry!). As with the drug possession vs. dealing laws, maybe the laws should introduce or refine distinctions between “own use” bawdy-houses and “distributed” use ones…. plus the laws against coercion and involving minors should of course always remain in force.

          BTW, back in the ’90s recession, I heard that human trafficking problem was operating in the other direction, too: young Canadian women w. few options here were being lured overseas by employment ads to be waitresses or hostesses or whatever and get their passports taken from them etc.

  17. Blair Shumlich says:

    If you legalize and regulate prostitution you can control much more of it. When prohibition ended it ruined the moonshine trade. Legalize prostitution, ruin pimps and mafia control.

  18. hitfan says:

    I see a lot of bleeding hearts here saying that this is a good decision, and that Liberals should applaud it and this will make the lives of women in the “profession” safer, etc.

    That may all well be true, but the Liberals are usually in power 70% of the time, why haven’t they ever “reformed” the anti-solicitation laws while they were in power?

    Because they don’t want to touch that political issue with a 100 foot yard pole, and they’ll get massacred in an election if they do. No one is willing to pay the political price for being “pro-prostitution”.

    Even Dalton McGuinty (Ontario Liberal) is against this court decision, there are no upsides for him to applaud it.

    I oppose judicial activism in this case–these laws were enacted by the House which represents the political will of Canadians. Bad laws? Maybe, but until the “pro-prostitution” activists can change the minds of the Canadian public on this issue and actually get their slate of candidates elected to overturn these laws, the law should still stand.

    Harper would probably reap political dividends if he enacts the “notwithstanding clause” to keep these laws intact. This would force a vote in the House every 5 years to find out how each MP stands on the prostitution issue. Outside of a few lefty gadflys in urban centers who could get away with being “pro-prostitution”, I imagine that an overwhelming majority of the House would keep the laws.

    My comments above regarding that it’s the Conservatives who would be most credible in legalizing “solicitation” still stands–some social conservatives may bicker, but this would allow them to punitively regulate and tax hookers and pot. Careful what you wish for–tobacco is legal but look how it’s regulated. Smokers are basically second class citizens.

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