By M. Christian
YNOT – Canada can be a very puzzling place, particularly at the intersection of sex and the law. Canadian laws are both more restrictive and more lenient than similar statutes south of the 49th Parallel. The country’s obscenity laws almost sent an American to prison for crossing the border with erotic Japanese comics on his laptop.
At the other end of the spectrum, Canadian courts earlier this year swept aside a broad patch of the country’s prostitution laws as unconstitutional.
“The Court of Appeal for Ontario … [said the laws] place unconstitutional restrictions on prostitutes’ ability to protect themselves,” wrote Adrian Humphreys in an article for the National Post. “The landmark decision means sex workers will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or ‘bawdy houses,’ while ‘exploitation’ by pimps remains illegal.”
The 5-3 decision raises a very interesting point. In the majority opinion, the justices noted Canada’s anti-prostitution laws “impl[y] that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal, enterprises.”
The sale of sexual services by independent contractors has been legal in Canada for some time, as long as sex workers plied their trade in the dark without so much as whispering a solicitation in public. Private communication is allowed, but workers were not permitted to advertise, hire support employees or band together for safety or increased revenues. A trio of sex workers who found the contradictions ludicrous sued, arguing the law owes all Canadian citizens equal protection, as long as their profession is legal.
In 2010, Ontario Superior Court Judge Susan Himel agreed, saying sex workers’ health and lives were “simply too high a price to pay for the alleviation of social nuisance.”
Naturally, the government appealed — which lead to nine months of deliberations and a whopping pile of paperwork: “25,000 pages of evidence in 88 volumes,” according to the National Post article.
Under the Court of Appeal’s ruling, sex workers now may operate their businesses out in the open much like any other legal endeavor, as long as they don’t literally take solicitation to the streets.
The reaction from sex workers and sexual freedom advocates has been enthusiastic.
“The new spring has come for sex workers; a new era has been ushered in,” said Alan Young, the lawyer representing the trio of sex workers who pursued the case.
The Executive Director of Sex Professionals of Canada, Nikki Thomas, said the decision means government needs to begin working not only on how to deal with the licensing of brothels, but also to find ways of educating the populace about the changing sex trade.
“We are human; we are taxpayers,” she said. “We are not going to have fire and brimstone and sex workers raining down from the sky.”
At this point the decision affects only Ontario, but experts expect the changes to generalize to the rest of the provinces with little resistance. At worst, the Ontario decision may face one final hurdle: a hearing before the Canadian Supreme Court.
The plaintiffs hope the rest of the country will agree with the majority justices in Ontario: “Prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court’s role to engage in that debate. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land.”
