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Ontario Superior Court lifts restrictions on sex trade

Laws violated “security of the person,“ Conservative government plans to appeal

On Tuesday, September 28, an Ontario Superior Justice struck down three federal laws which it ruled placed sex workers at risk. The laws, which restricted communicating to solicit sex, running a bawdy house, and living off an income procured by sex work, were successfully challenged by Terri-Jean Bedford, a dominatrix, and Valerie Scott and Amy Lebovitch, both former sex workers. Justice Susan Himel ruled that these laws violate the Canadian Charter of Rights and Freedoms.

The Conservative government has announced they will appeal the Ontario Superior Court’s decision, which would otherwise take effect in 30 days. The ruling only applies in Ontario, but if the ruling survives appeal, the government will almost certainly take the case to the Supreme Court. If Himel’s decision is upheld at the national level, the criminal prohibitions restricting sex work will be abolished across the country.

Hedy Fry, Liberal Vancouver-Centre MP and Chair of the Standing Committee on the Status of Women, applauded the landmark ruling. “This is an important step in recognizing the constitutional rights of adult sex-trade workers to security of the person and acknowledges the difference between the rights of consenting adults and the exploitation of vulnerable persons,” she said.  
“[The ruling] means that the safety of sex workers is a new criteria to analyze prostitution. … Now, saving the lives of sex workers will be taken into account,” explained Pascale Robitaille, Outreach Team Coordinator for Stella, a Montreal community group run by and for sex workers. Stella is applying for intervener status in the appeal case. 
Fry explained why transparency means increased safety. “There are sex trade workers, especially street workers, who face greater risks daily, because they cannot call the police for protection or report a ‘bad trick,’” she said. 
Minister of Justice and Attorney General Rob Nicholson provided no explanation when he announced the Conservatives’ decision to appeal.

Fry suggested that disapproval can tacitly condone violence against sex workers. “There are still those who say that street sex workers are ‘not respectable’ and the work they do is ‘shameful and indecent’; ergo these are throw-away humans who ‘deserve what they get,’” she said.

“The state above all cannot be devoid of compassion and care for all of its citizens. The responsibility to do so is not limited to the ‘decent’ nor can it subjectively and ideologically measure that ‘virtue.’”

Robitaille and Susan Davis, a Vancouver sex worker and coordinator of the BC Coalition of Experimental Communities (BCCEC) both say they are unsurprised by the government’s decision to appeal. Davis’s testimony was used in the trial, along with research submitted by the BCCEC.

“The plan all along was to win this one and then win at Supreme Court level,” explained Robitaille.

“It’s good for [the case] to go through to the highest court of the land. … We just want to see [these laws] come down all over the country,” said Davis.

Davis is optimistic that the ruling will be upheld.

The laws struck down by Himel’s ruling were adopted in 1985 in response to complaints of sex work being a nuisance and an eyesore.

A 2006 report the Standing Committee on the Status of Women urged the decriminalization of sex work in combination with strategies to deal with intersecting social problems. Fry explained that these included “dealing with issues of poverty, addiction, the plight of urban aboriginals, prevention, education and helping women in the sex-trade with exit strategies when they wish to do so.”