The most significant aspect of the Ontario Court of Appeal’s decision on operating brothels ‘is not what it did, but rather what it did not do’

Dangerous liaisons - by Prof. Vincent ChiaoFrom the Spring/Summer 2012 issue of Nexus.

By Vincent Chiao, Assistant Professor, Faculty of Law

Early this spring, the Ontario Court of Appeal handed down a decision that invalidated the Criminal Code’s prohibition on the operation of “bawdy houses” (i.e., brothels) and limited the reach of another provision criminalizing “living on the avails” of prostitution. As the court recognized, sex workers frequently toil in a “world of dark streets and barren, isolated, silent places … with always the risk of violence and even death.” The court largely sided with the trial court in concluding that the effect of these Criminal Code provisions was to needlessly make an already dangerous job that much more precarious, thereby infringing sex workers’ security of the person in a manner inconsistent with the principles of fundamental justice. The decision has garnered international attention for its brave and pragmatic solicitude toward a highly vulnerable segment of the population. Notwithstanding the attractions of the protections held out by the Ontario court, however, the decision further underscores the need for these sorts of complex and controversial questions to ultimately be resolved through the ordinary political, rather than legal, channels.

The case arose out of a challenge brought by a trio of current and former sex workers who, supported by various intervening parties, contended that the Criminal Code’s treatment of prostitution – permitting the sale of sex, but regulating how it is sold – seriously endangers sex workers by forcing them to work under treacherously dangerous conditions. In particular, the plaintiffs, respondents before the Ontario Court of Appeal, argued that the bawdy house provision (s. 210) made it legally impossible for sex workers to work out of monitored and secure locations, instead forcing them to work on an “out call” basis, i.e. to travel to clients’ homes or meet them in hotel rooms. The living on the avails provision (s. 212(1)(j)) further restricted their ability to retain personnel – such as receptionists, bodyguards and drivers – who could help ensure their safety, and a final provision, criminalizing public communication “for the purpose of engaging in prostitution” (s. 213(1)(c)), restricted their ability to screen customers for signs of dangerousness. Although the respondents did not prevail on this last point, they won major victories on their first two claims, with the bawdy house provision struck down as unconstitutional and the living on the avails provision judicially limited to “exploitative” relationships.

Despite these victories, arguably the most significant aspect of the court’s decision is not what it did, but rather what it did not do. Contrary to some misleading statements in the media, this was not a decision “legalizing” prostitution; prostitution is, and has long been, legal in Canada. The court assessed the Criminal Code’s attempt to regulate various aspects of the sale of sex, but did not address the possibility of criminalizing prostitution as such. The most important aspect of the Ontario court’s decision may thus be to raise the political salience of the prostitution question, placing the ball squarely in the government’s court as it decides whether to abandon the Criminal Code’s long-standing toleration of prostitution per se in favour of a more broad-brushed criminalization of prostitution generally. This would, presumably, be a result the respondents would consider not simply worse than the result reached by the Ontario court, but even worse than the status quo ante. Although the validity of any such legislation could ultimately be tested before the Supreme Court of Canada, it is at least not clear that the respondents and their allies should expect a favorable outcome to a challenge of this kind, as the Supreme Court has not so far shown too much enthusiasm for rigorously policing Parliament’s decisions as to what kinds of conduct are worth criminalizing. As the Court observed nearly a decade ago in R. v. Malmo-Levine, a case challenging the criminalization of simple possession of marijuana, while questions about what sort of conduct to criminalize are “matters of legitimate controversy … the outcome of that debate is not for the courts to determine.”

This is perhaps as it ought to be. Prostitution is one of those issues that tends to stir strong feelings, and to create controversy among reasonable people who otherwise share similar ideals. It is a complex and persistent problem that requires nuanced and informed policymaking. Whatever one’s views on the morality of buying and selling sex, concerns about institutional competence and democratic legitimacy both suggest that Canada’s decisions as to how to regulate the sale of sex are best taken not in the whispered chambers of its appellate courts, but in the vexing crucible of political contestation.