Canadian Appeals Court Legalizes Brothels Under Canadian Constitution

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The Volokh Conspiracy:

 

 

 

 

Canadian Appeals Court Legalizes Brothels Under Canadian Constitution

 

Orin Kerr • March 26, 2012 6:38 pm

 

The opinion is here. From the introduction:

In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it. Parliament has, however, enacted laws that indirectly restrict the practice of prostitution by criminalizing various related activities. At issue in this case is the constitutionality of three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament‟s response to prostitution:

1. Section 210, which prohibits the operation of common bawdyhouses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another‟s prostitution; and

3. Section 213(1)©, which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

In the court below, the application judge held that these provisions are unconstitutional and must be struck down because they do not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms. She reasoned that the challenged laws exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety. Those steps include: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)©).