Friday 3 January 2014

Prostitution  in  Canada                        

Prostitution has been legal in Canada for a great many years. What has been illegal with respect to prostitution is living off the avails of prostitution and soliciting in a public place. Alas, the police have charged husbands and/or boyfriends who have been out of work with living off the avails of prostitution when their girlfriends or husbands were given the money by their girlfriends or wives to buy food for both of them or pay the rent for both of them. And if the act of prostitution was undertaken in their home, their home is declared a public place and that means that they can’t even bring alcoholic beverages into the home without first obtaining a permit from the government. As you can see, this is a foolish law.

It has in the past, been illegal to solicit a potential customer in a public place such as a street sidewalk. Now I can see the justification for that particular law. A great many citizens who had no intentions whatsoever of having sex with a prostitute, resented being approached by a hooker on the street. Some of the hookers were quite aggressive in the manner in which they made their solicitations. A citizen shouldn’t have to sidestep an aggressive hooker.

The majority of the Court of Appeal found the prohibition on communicating in public for the purpose of prostitution was constitutional.  While it engaged security of the person, it did so in accordance with the principles of fundamental justice.  That is because the  provision in the Criminal Code aims to combat nuisance-related problems caused by street solicitation.  It is not arbitrary; it has been effective in protecting residential neighbourhoods from the targeted harms.  Nor is it overbroad or grossly disproportionate.  In finding the provision grossly disproportionate, the application Superior Court judge erred by understating the objective in a way that did not reflect the evidence, and by over-emphasizing the impact of the provision on prostitutes’ security of the person.  The evidence did not establish that inability to communicate with customers contributed to the harm experienced by prostitutes to a degree that made the impact grossly disproportionate to the benefits.  The majority of the Court of Appeal also found that it was bound by the fact that this provision violated s. 2(b) of the Charter, but was justified under s. 1 of the Charter

Section 7 provides that the state cannot deny a person’s right to life, liberty or security of the person, except in accordance with the principles of fundamental justice.  At this stage, the question is whether the impugned laws negatively impact or limit the applicants’ security of the person.                                                

The Supreme Court said in response;The prohibitions at issue do not merely impose conditions on how prostitutes operate.  They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

The bawdy-house provisions, however, make it an offence to do so in any “place” that is “kept or occupied” or “resorted to” for the purpose of prostitution.  To some degree, that provision can be a godsend to non-participants in the immediate area of a bawdy house.

For example, if you live in a rooming house, a condo, an apartment, a duplex or two houses joined together, the last thing you want to be hearing on the other side of a common wall is the high-pitched shrieking of joy from a woman indulging in some form of sexual activity.

Many years ago, I was in a motel room on Ottawa and around midnight while I was almost asleep, I suddenly heard screeching from a woman. Further, the headboard of the bed in her room was banging the wall that the headboard of my bed was next to. For half an hour I could hear, “WOW”, thump, thump, “WEE” thump, thump, “OHHH, YOU’RE SO GOOD” until I finally had enough. I went to the main desk and told them if they couldn‘t put an end to the racket going on in the room next to me, then I wanted a room in the owners apartment. The love birds were turfed from the hotel and I then got a decent night’s sleep. 

Based on a balance of probabilities, the safest form of prostitution is working independently from a fixed location. Obviously indoor work is far less dangerous than street prostitution — a finding that the evidence amply supports. However I would be remiss if I didn’t point out that not always is indoor prostitution safe. A number of years ago, a man killed and butchered a woman who was in her bedroom in her parent’s home while her parents were downstairs in the kitchen. They didn’t hear a thing coming from their daughter’s room. This means that for a brothel to be safe, security has to be maintained so that such a thing doesn’t happen to the prostitutes who work out of the brothel.

The current prohibition on hiring drivers or security guards is a problem  because this prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks.  Further, it interferes with provision of health checks and preventive health measures

When I was in my second year of the Criminology Program at the University of Toronto, I chose to write one of my papers on prostitution. I pointed out that in my opinion there was a need for women who are willing to share their bodies with men that are strangers to them. My reasoning was based on the fact that many men don’t have girlfriends or husbands because of a number of reasons that are not their fault and they need some way to release their sexual urges. Even married men would go to as prostitute to have some form of sex their wives wouldn’t give them. 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.

A common complaint from the prostitutes in Canada was that if they are alone with a stranger, they might get killed and that is often why their boyfriends would be nearby. But the boyfriends were then charged by the police for living off the avails of prostitution. Even if a cab driver remained nearby, he too would face that charge.

As to pimps living off the avails of prostitution, I have no sympathy at all for them. They usually are scum bags that take almost all of the prostitute’s earnings and many of them beat the women if they don’t earn enough.

Well, at last, these issues have been looked into by the Supreme Court of Canada. Its decision came down on December 20, 2013. They heard arguments from 20 interveners representing government along with a number of organizations.

Three current or former prostitutes, (B, L and S) brought an application to the court seeking declarations that three provisions of the Criminal Code which criminalize various activities related to prostitution, infringe their rights under section 7 of the Canadian Chartersection 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, section 213(1)(c) prohibits communicating in public for the purposes of prostitution.  They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence.  B, L and S also alleged that section 213(1)(c) infringes the freedom of expression guarantee under section 2(b) of the Charter, and that none of the provisions are saved under section 1 which states that despite the abuses against the Charter, exceptions can be made in the interest of the general public.

The court ruled that the existing 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 imposing dangerous 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.” unquote

Further, the three women 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 Canada’s constitutional order.  This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law and where the law goes too far and interferes with some conduct 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 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 guaranteeing their security against harm being done to them.

The Supreme Court recognized that working as call girls is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working as call-girls currently face criminal sanction.  With respect to s. 212(1)(j), prostitution, including legal out-call work, 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, s. 213(1)(c) prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial, stage of a potential transaction, thereby putting them at an increased risk of violence. 

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 reduce the risk of such violence being brought down upon them.

Making in an offence to forbid the existence of a bawdy house and living on the avails of prostitution has been unconstitutional on the basis that they engaged the security of the person in a way that was not in accordance with the principles of fundamental justice. Nevada and Amsterdam were places where men could go to brothels to have sex and it was legal.

The court also said, “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.” unquote

Unfortunately, the communicating law as it applies today has had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable to being picked up by someone who will do serious harm to them when they are helpless and alone.

While the Attorneys General did 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 were 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 enough in order to capture all exploitative relationships. 

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  which means that even if what the prostitutes do is against the best interests of the general public, they are protected from the current law that outlaws the conduct of those who protect prostitutes for a fee as it pertains to the charges of living off the avails of prostitution.

The court ruled that although 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.

There is no doubt in my mind that before the Canadian parliament prepares the new legislation, there will be many people who will find fault with the Supreme Court’s ruling and will make their views known to the parliamentarians.

As an example, young women going to university or college will be tempted to sell their bodies to strangers to earn their tuition and their living expenses rather than take on a temporary job somewhere. Further, unscrupulous pimps will still be around acting under the guise of drivers etc.  

Parliament will also have to take into consideration the fact that when prostitutes congregate in one specific area of any community, petty crime soon follows.  This means that the prostitutes in a community should be permitted to congregate in an area that is neither residential or where stores are located so that the non-participant citizens won’t be hassled.

One of the issues that will surely be raised in Parliament is the issue of payment for those services.  That could be solved by licencing the hookers and making them eligible to participate in both federal and possible government pension plans. In other words, the more they earn and declare on their income tax forms, the higher will be their benefits when they retire at age 60 or older.

Years ago, I was invited to make a presentation before the Toronto City Council that wanted to licence hookers. I expressed some concern by stating that could be a problem for the women if their request for such a licence was refused. I asked the city council and the hundreds of spectators in the council hall as to how they would feel if they had been turned down for a prostitute’s licence and later when asked if they had been refused a licence in the past, they would have to admit they couldn’t even get a licence to sell their bodies. That statement brought howls of laughter from both the spectators and the members of the council.

Section 213(1)(c) of the Criminal Code prohibits communicating or attempting to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute, in a public place or a place open to public view.  The provision extends to conduct that is verbal communication by prohibiting stopping or attempting to stop any person for those purposes. This law applies to both hookers and their johns. Toronto female police officers would often pose as prostitutes and as soon as a john proposed to the officer, a police car suddenly appeared and the john was promptly arrested.  Even if many of the prostitutes find ways in which they can solicit business in places other than those that are public, there will be some of them who will continue to congregate on the sidewalks of busy streets.

Another way to cut down on the number of prostitutes in Canada is for Immigration Canada to be more careful as to whom they permit to come to Canada. For example, as many as 400,000 prostitutes in Germany came from other countries. Whenever organized crime raises its ugly head, you can be sure that the prostitutes will follow. The way to solve this problem is to punish all members of organized crime, no matter what their status are in the gangs. Pimps who live entirely on the earnings of prostitutes should be severely punished. A five year minimum for the first offence and every offence after that might very well get those pimps away from these women.

Accepting the realization that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal in Canada nor has it ever been so.  This being so, it behooves the members of the Canadian Parliament to make sure that the prostitutes can act in a manner that reduces their risk of being harmed in any manner whatsoever. To ignore their current plight, is contrary to the Canadian Charter of Rights and Freedoms that guarantees that everyone is entitled to be protected from harm as stated in section 7 of the Charter. 

At the same time, the parliamentarians must bring in legislation that also protects the communities from un-called for nuisances that may come about by bothersome solicitation on the part of prostitutes and johns alike in public places—such as  in residential areas and especially where children congregate and also in commercial  areas where shopping is done.

If more of an effort was made to improve the lives of women who are forced for economic reasons to prostitute themselves, there would be less women choosing this way of life. Of course many of these women bring about their vocation to a life of prostitution by ingesting drugs that harm them, both physically and mentally.

Prostitution will only end when men have no need to be sexually aroused. Since that will never happen, society has an obligation to organize prostitution in such a manner that the sex workers are protected, the criminals have no part of it and the ordinary citizens aren’t hassled by it.

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