Prostitution has had a strange legal status in Canada. Prostitution itself is not a crime, but there are a host of criminal penalties that apply to a number of activities surrounding prostitution, including soliciting clients, operating a “bawdy house” (how risqué!), and “living off the avails” of a prosititute. These provisions have been challenged in court recently, struck down, and then appealed.
The most recent decision came out yesterday by the Ontario Superior Court. In its ruling, the court ruled the ban on bawdy houses was unconstitutional, ordering legislators to change the law within a year. The court also decided that it was unconstitutional to make it illegal to live off the avails of a prostitute, but retained this prohibition under “circumstances of exploitation.” Paging Karl Marx to the Superior Court!
The court retained the prohibition on soliciting clients. As a practical matter, I wonder if the idea is that prostitutes communicate telepathically, or if they just happen to get paid if a client feels so inclined, but apparently the constitutionality of banning solicitation is sound according to this ruling. My colleague, Melanie Heath, who researches sexual regulation and social policy (and whose brilliant book, One Marriage under God: The Campaign to Promote Marriage in America will come out this year with NYU press) points out that laws regulating prostitution often have the unintended consequence of exacerbating inequalities among sex workers, making those with the fewest resources the most vulnerable to abuse.
I will be interested to see how long the solicitation law is allowed to stand. It seems to me that it is only a matter of time before it falls. Once the courts set a precedent for recognizing sex workers as full citizens, how long can it be before this limit on their speech is lifted? While there isn’t a First Amendment-style guarantee of free speech up here, the human-rights approach of the Charter should eventually guarantee full access to speech for people engaged in legal work activities.