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Tuesday, September 28, 2010

Superior court strikes down prostitution ban

In a definitive win for the right of women to own their own bodies, the Ontario Superior Court has struck down the ban on prostitution citing the fact it's criminalization, is far more endangering to women than the risks of prostitution itself.

This ruling is a huge win for those looking for ending drug prohibition, too. The judge in this case has ruled that the harm caused by prohibition, far exceeds the harm caused by the underlying activity. This ruling will serve as a powerful piece of jurisprudence in that regard.

But for the middle-aged, grey-haired, conservative men, have no fear: the anti-liberty brigade will be quickly mobilizing to put an end to this trend, starting with a Supreme Court appeal and probably even proposing a Section 33 (Notwithstanding clause) invokation under the Charter.

On the flip-side, this could be a perfect opportunity for Christian conservatives and Islamic extremists to put aside their differences and wage interfaith Jihad against liberal hedonism.

More from the Globe & Mail:

In a landmark decision striking down the core of the controversial law, Ontario Superior Court Judge Susan Himel said that the law forces women to operate their business furtively in an atmosphere of constant secrecy and danger.

"By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance," Judge Himel said in her 131-page ruling which took almost a year to produce.

Read the rest.

Posted by Mike Brock on September 28, 2010 | Permalink

Comments

This is going to save men a lot of money. Hanging out in bars is extremely expensive in Ontario.

Might also save their livers in the long run.

Posted by: Terrence | 2010-09-28 1:49:55 PM


Mike,

I don't know if the decision is online yet. From what I gather from the news reports, the judge's view is that the law against bawdy houses when combined with the law against solicitation puts prostitutes at risk.

If that's the argument, then the government may be able to reform or give up one of these laws and by doing so save the other.

This is one way I'm not sure the analogy with drug laws holds.

Posted by: Terrence | 2010-09-28 1:57:17 PM


Will prostitutes have to lower their rates and deal with increased costs as new competition enters the market?!?! ;-)

Posted by: Anonymouse | 2010-09-28 3:34:01 PM


Mike why so cynical? It is far more than Christian conservatives that oppose legalization. Here's an article in the Sherwood Park News by a young lady that could hardly be classified as Christian Conservative, let alone middle aged greay haired male.

http://www.sherwoodparknews.com/ArticleDisplay.aspx?archive=true&e=2147646

I find some things about prostitution offensive but I don't think it should be illegal and the only reason is that it's not my business what other consenting adults do. I should have no right to stop them no matter what I think morally.

Tf it is indeed true that less harm is done when it is legal then all the better.

Posted by: TM | 2010-09-28 4:03:41 PM


Many women in Amsterdam don't want to work in the prostitution trade because of the embarrassment of being known. So a lot of it will be underground even if it is legalized.

Posted by: StanleyR | 2010-09-28 5:11:20 PM


oops I mean't ,Many women in Amsterdam don't want to work in the LEGAL prostitution trade because of the embarrassment of being known. So they still work in the underground one. So a lot of it will be underground even if it is legalized.

Posted by: StanleyR | 2010-09-28 5:14:06 PM


When it comes to Islamic Jihad against Liberal Hedonism, I do not think it will happen.
Under Islam you can have "chastity houses" which are really brothels.
Sharia Law allows "sighe" or "temporary marriage" for a fee. In fact it is prostitution no matter how you slice it.
Men can "marry" destitute women for a half hour or so. And the government can boast it has prostitution off the streets.
The Koran allows men to have four wives- a form of prostitution also?

Posted by: StanleyR | 2010-09-28 5:25:22 PM


StanleyR,

But Christians have this covered too: the confessions booth. And prayer seeking forgiveness for sins.

All religious doctrine is filled with loopholes.

Posted by: Mike Brock | 2010-09-28 5:53:04 PM


So the judge's ruling is, in effect, that any law that makes it more difficult for a criminal to operate, or the illegal act more unpleasant or dangerous to commit, is unconstitutional. The government says it will appeal. I would, too. And test the judge's hair for drugs while I was at it.

Posted by: Shane Matthews | 2010-09-28 6:30:14 PM


Uh no, he said something along the line that the people this law is meant to 'protect' are actually harmed by it. The law was properly struck down basically on the basis of its asininity. Another great victory for freedom brought by judicial activism.
Semithreadjack: why no mention of the Venezuelan elections?

Posted by: Cytotoxic | 2010-09-28 6:46:51 PM


Do you think drug addicted prostitutes trying to raise enough cash for their next fix will pre-screen their johns and properly advertise, keep records and all the small business accounting that goes with it and spend money on an office as well? Will they submit to health tests and require their clients too as well?
Of course not, they are desperate. Legalization will not help these prostitutes. These are messed up women with many many self destructive issues. Since they have no administrative or business skills to own and run a flower shop do you think they can run their own tidy prostitute outlet? Not.

Posted by: StanleyR | 2010-09-28 8:04:57 PM


Three laws were struck down. The three, in combination, seem to be a major issue because they prevent prostitutes from effectively screening clients.

The government might be able to get out of the dilemma by passing new legislation to ban public solicitation, while allowing common bawdy houses. That would keep it off the streets, but solve the screening problem.

Posted by: Terrence | 2010-09-28 8:20:35 PM


Shane, come on, seriously? Do you really really think that's what the court's said? This is a textbook example of unintended consequences.

This law wasn't put in place because we as a society all decided that f*cking for money is wrong. No, it was put in place as a safety measure to discourage prostitution because it's supposedly dangerous. This isn't like laws against arson, it's more like laws about child safety seats. I.e. arbitrary, stupid, and probably doing more harm than good.

Hundreds of these people have been murdered in the name of their own safety. For god's sake, it's like hookers are the only people in the world who can't make money off of sex. Drug stores do, cheap hotels do, Fabreze would be nothing if it weren't for incontinent cats and street prostitutes.

It's not like they're breaking into cars. They're not doing anything to anyone else's junk ... wait ... well anyhow they're not hurting anyone but themselves.

How is it the government's job to be the arbiter of justifiable cause for f*cking someone? Who here hasn't at one point had sex with someone because they were bored? There are worse reasons than money.

The law took away people's liberty in order to help them. It failed, it's gone. That's the whole point of the third branch. It's done it's job, where's the problem?

Posted by: Robert Jago | 2010-09-28 8:23:47 PM


    Uh no, he said something along the line that the people this law is meant to 'protect' are actually harmed by it.

First of all, the judge was a woman, unless they're now naming boys "Susan." Secondly, what she said was that the harm done to the criminal by the criminalizing of the act exceeded the harm done to society by the legalizing of the act. In short, if making something illegal means that those who choose to do it anyway might be taking risks, then we simply can't make it illegal.

    The law was properly struck down basically on the basis of its asininity.

No, it was struck down because the judge's heart started to bleed and in the process she forgot who pays her salary and why.

Posted by: Shane Matthews | 2010-09-28 8:26:05 PM


    The government might be able to get out of the dilemma by passing new legislation to ban public solicitation, while allowing common bawdy houses. That would keep it off the streets, but solve the screening problem.

Brothels are an improvement on turning tricks in the street, to be sure. But on the other hand they can also be accused of concentrating undesirables, which is why they were outlawed in the first place.

Posted by: Shane Matthews | 2010-09-28 8:27:48 PM


"concentrating undesirables"

Yes, Shane. From which school did you earn your Bachelors of Social Engineering?

Why don't you move to the UK? They have robust anti-social behavior laws there, video surveillance everywhere, and a preponderance of government intrusion into people's personal life to "protect them". It's practically a custom-made paradise for you.

Posted by: Mike Brock | 2010-09-28 8:35:34 PM


    Yes, Shane. From which school did you earn your Bachelors of Social Engineering?

Is that a denial? Or a smoke screen?

    Why don't you move to the UK? They have robust anti-social behavior laws there, video surveillance everywhere, and a preponderance of government intrusion into people's personal life to "protect them". It's practically a custom-made paradise for you.

Do you have a specific objection to make, Mike, or did you just drop by to emote? So-called "dens of iniquity," including brothels, gambling halls, and crack shacks, are well known sources of trouble for the neighbours.

Freedom is supposed to be a shield which you can raise against the swords of others, not a sword with which you kind smite the shields of others. Your freedoms belong about your own person, not in someone else's face.

Posted by: Shane Matthews | 2010-09-28 8:41:29 PM


"So-called "dens of iniquity," including brothels, gambling halls, and crack shacks, are well known sources of trouble for the neighbours."

Shane,

But couldn't this be addressed at the local level, through zoning laws?

Posted by: Terrence | 2010-09-28 8:43:26 PM


Freedom is supposed to be a shield which you can raise against the swords of others, not a sword with which you kind smite the shields of others. Your freedoms belong about your own person, not in someone else's face

And what about the freedom of women to have agency over their own bodies?

Posted by: Mike Brock | 2010-09-28 8:48:53 PM


And what about the freedom of women to have agency over their own bodies?

Posted by: Mike Brock | 2010-09-28 8:48:53 PM

When it comes to women having agency over their body, when it comes to prostitution, the woman has very little agency over her body.
The very type of customer who frequents prostitutes
are the kind of men who control them and do not give a fig over what she thinks or protests over. The very type of customer by nature has virtually no respect for them as a whole. Harlots are their toy to play and do with what they want. Their customers often are dangerous men to begin with.
johns are not calm respectable pillars of society.
Under prostitution there is little agency, because of customers demands (being the phyiscally stronger gender) Customer's demands gets it's way. Where is the "agency over their own body" when the john says "my way or else"?

Posted by: StanleyR | 2010-09-28 9:22:03 PM


    But couldn't this be addressed at the local level, through zoning laws?

Perhaps, but you're simply trading one level of jurisdiction for another. And there are libertarians who hold that the very existence of zoning laws is a slap in the face of liberty, so that might be problematic as well.

Posted by: Shane Matthews | 2010-09-28 9:25:57 PM


    And what about the freedom of women to have agency over their own bodies?

You have agency over your own body only insofar as it does not affect others. If your conduct in any way affects me, it becomes my business and I gain a say in it, proportionate to the degree of the effect.

By the way, that's not a Charter right.

Posted by: Shane Matthews | 2010-09-28 9:29:23 PM


How does a woman selling sex affect you, Shane? You cab argue that ANYTHING affects you.

You could argue fatty good contributes to higher taxes or health premiums people pay.

You could argue the fumes from the exhaust of cars contributes to smog, which does actually kill hundreds of people a year in North America with respiratory problems.

You could argue that cars driving by at night with their headlights on bother you as they cast light beam across your ceiling.

You do not have the right not to be "affected" by things. You have a right to life, liberty and the security of the person. That's what you have.

As for being "affected" by things. Like lost revenue, damage to property, etc. That's what we have civil courts for.

Posted by: Mike Brock | 2010-09-28 9:49:21 PM


    How does a woman selling sex affect you, Shane? You cab argue that ANYTHING affects you.

But if I can bring used condoms and used hypodermics to bolster that argument, I have a pretty good case.

    You could argue fatty good contributes to higher taxes or health premiums people pay.

Only if I wanted to be a liar. Smokers and fatties actually save the system money in the long run by crapping out soon after retirement (or even before) meaning the state avoids the large health-care bills that non-taxpaying seniors run up. The state should be giving us money.

    You could argue the fumes from the exhaust of cars contributes to smog, which does actually kill hundreds of people a year in North America with respiratory problems.

Which is part of the reason that the regulations governing auto emissions are increasingly strict.

    You could argue that cars driving by at night with their headlights on bother you as they cast light beam across your ceiling.

But could document no harm that arises from such, so no dice.

    You do not have the right not to be "affected" by things. You have a right to life, liberty and the security of the person. That's what you have.

And you do not have the right to agency over your own body. That is NOT in the Charter, anywhere.

    As for being "affected" by things. Like lost revenue, damage to property, etc. That's what we have civil courts for.

Which the Chief Justice recently remarked was no longer an option for a majority of Canadians. Also, courts can only deal with the aftermath; the victims are already made. It makes more sense to prevent the need for a court in the first place.

Posted by: Shane Matthews | 2010-09-28 10:03:05 PM


This is a great victory for Liberty! Who is the state to tell consenting adults what sort of relationships they can have, or what kind of commercial transactions are acceptable. This is a landmark decision that will soon spread to every area of life. The statists are on the run.

Posted by: AB Patriot | 2010-09-28 10:32:30 PM


How will legalizing the trade reduce the potential for violence? If you're a sex trade entrepreneur, put an ad on Craig's list, and make house calls, for instance, what further guarantee of safety is provided by legalization?

For protection, you turn to a pimp or brothels, which are also then legal. What prohibits the exploitation of women by pimps? Pimps pay bouncers to protect their girls. The girls employ a buzzer to call the bouncer, but by the time he arrives, the violent attack has occurred. How did legalization help?

Legalization in Holland has expanded the sex trade and attracted women from other countries. Illegal sex traders, like illegal immigrants, pay traffickers to get them to the promised land, where they think they can make a better living. If the money is not available for their ticket to Eden, women can mortgage there potential new found prosperity to traffickers and repay them by turning tricks.

It sounds like a great plan. LOL.

Posted by: Jim | 2010-09-29 2:35:23 AM


    It sounds like a great plan. LOL.

"Plan"? You're assuming the judge put that much thought into it, Jim.

Posted by: Shane Matthews | 2010-09-29 6:18:03 AM


This is a victory of liberty.

Posted by: Charles | 2010-09-29 6:35:03 AM


Its to bad this law wasnt struck down a long time ago
maybe Pickton wouldnt of had so many easy victims.

Posted by: don b | 2010-09-29 8:29:20 AM


Stupid, trashy women who will trade sex for a Hershey bar will never be in short supply, Don, nor will stupid, trashy men with Hershey bars. Robert Pickton's type, however, is mercifully rare.

Posted by: Shane Matthews | 2010-09-29 8:55:32 AM


Why is it only men that are allowed to exchange the fruits of their secondary sexual characteristics for huge wads of cash?

Posted by: Mont D. Law | 2010-09-29 9:21:03 AM


    Why is it only men that are allowed to exchange the fruits of their secondary sexual characteristics for huge wads of cash?

The penis and vagina are primary sex characteristics, not secondary sex characteristics. About the only secondary sex characteristic of note men have is their beards, and when last I checked, those weren't going for "huge wads of cash."

This has nothing to do with identity politics (which is all bullshit anyway) and everything to do with a judge forgetting exactly what the law is supposed to do and why. Criminals are not owed compensation of, or relief from, the consequences of a criminal lifestyle. Next this flake will be demanding that everyone leave their house lights burning at all hours, so that burglars will not risk being seriously injured by stumbling through your house in the dark.

Posted by: Shane Matthews | 2010-09-29 10:02:51 AM


While I find prostitution repugnant I don't see how it can be defined as criminal. These are consenting adults after all. Non consensual sex is a crime, it's called rape.

Shane, what exactly do you see as "criminal" about the activity?

Posted by: Farmer Joe | 2010-09-29 10:58:39 AM


Shane,

Are you aware that prostitution was already not illegal in Canada.

The law made it illegal to buy or sexual services.

In this sense, the activities of prostitutes was pretty much legal. It was only their clients which were breaking the law. Which is why, for instance, it's legal for police to use undercover female police officers to pose as prostitutes and nail customers -- like the Toronto Police has done in the past.

The argument was, this prostitutes are being put into a more dangerous situation, doing something which is perfectly legal to do (sell sex) -- through the government creating the environment in which they only place they can successfully lure customers is in back alleys and seedy areas.

If the prostitutes could advertise their services out in the open, there would be less kidnappings, less back-alley rapes, etc. And the judge interpreted the law perfectly in this case.

Posted by: Mike Brock | 2010-09-29 11:10:40 AM


Anything Shane dosnt like must be a crime, he has an egoic mind always seeking conflict , always has to be right. He will spend all day blathering gibberish that makes no sense.

Posted by: don b | 2010-09-29 11:19:33 AM


and another unelected,appointed judge brings down a "landmark" decision. More info at link below.

http://graysinfo.blogspot.com/2009/03/how-to-corrupt-pervert-and-subvert.html

Posted by: Stephen J. Gray | 2010-09-29 11:44:15 AM


Any adult who turns their crotch
into a circus sideshow
should not be surprised
when it gets overwhelmed
by clowns, freaks, wild animals
garbage & chaos..

Libertarians are showing themselves
to be cold hearted bastards


Posted by: 419 | 2010-09-29 11:46:49 AM


419 is just like Shane ,blathers gibberish.

Posted by: don b | 2010-09-29 11:50:18 AM


Stephen J. Gray,

It is the very purpose of judges in our system to stick up for the rights of individuals. It is not the responsibility of elected officials to grant rights to individuals.

I know populist conservatives think that's the case. Which is why they demand the right to vote on our rights. But in fact, this is not the purpose of the judicial branch and the constitution.

The constitution and the judicial branch is a check on the power of the government and the voters. Rights are not subject to debate in a liberal democratic system. I know that socialists and conservatives both have difficulty with that, but it's the case.

You can read about it all here: http://en.wikipedia.org/wiki/Liberal_democracy#Rights_and_freedoms

And choice quotes:

"Liberal democracy" does not respect absolute majority rule (except when electing representatives). The "liberty" of majority rule is restricted by the constitution or precedent decided by previous generations. Also, the real power is actually held by a relatively small representative body. Thus, the argument goes, "liberal democracy" is merely a decoration over an oligarchy.

[...]

Unmoderated majority rule could, in this view, lead to an oppression of minorities

When conservatives complain about "activist judges" what they are really saying, is that the judges are not respecting the will of the majority. Except that's NOT WHAT THEY'RE SUPPOSED TO DO!

Majoritarianism is what most populist conservatives seem to believe in. Except both the US and Canadian constitutions are specifically designed to prevent majoritarianism. Conservatives seemingly do not understand or do not want to understand this:

Majoritarianism is a traditional political philosophy or agenda which asserts that a majority (sometimes categorized by religion, language, social class or some other identifying factor) of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society. This traditional view has come under growing criticism and democracies have increasingly included constraints in what the parliamentary majority can do, in order to protect citizens' fundamental rights.

The last bolded point is where the role of judges to shoot down laws criminalizing certain things comes in. It is their job, to limit the power of the democracy.

Posted by: Mike Brock | 2010-09-29 12:02:34 PM


Why would advertising change the nature of street trade? Why move off the street, if additional overheads cut into profits? Assuming that public fornication is still illegal, even if prostitution is legal, the sexual act will need to be conducted elsewhere, i.e. back alleys, out of the public view. How does it protect traders from Picton? He picks them up on the street, takes them back to his farm, stabs them, cuts them up and buries them? How will that change with legalization?

Posted by: Jim | 2010-09-29 12:44:25 PM


Thanks Don !
you are really hot today
back at your normal level of wit

Posted by: 419 | 2010-09-29 1:03:14 PM


Stephen,

Your article has a few issues that really should be addressed:

(1) The idea that the Charter was/is a ruse.

I'm not the biggest fan of the Charter, but you should look into the minutes of the special joint committee that discussed the wording of the Charter prior to its adoption.

There is a lot of bluster in the minutes, but also a lot of solid thinking about how the different clauses of the Charter should have been worded. There's no conspiracy, no ruse.

Section 7, the clause relied upon in striking down the prostitution laws, got a lot of discussion. There was a movement to change "principles of fundamental justice" to "due process", and the committee could have adopted that wording. This change would likely have prevented the courts from doing what they've done with Section 7.

They didn't, but there was nothing stopping them -- not the heavy hand of Trudeau, for example -- from doing so.

(2) The accusation that the court has twisted the meaning of the Charter:

Given that the Charter does use the phrase "principles of fundamental justice", instead of "due process", I have a hard time blaming courts when they do not interpret the former in a purely procedural manner. Would you rather judges ignore the actual words used, and confine themselves to their impressions of what a long disbanded committee might have meant?

(3) Judicial activism:

It's the role of the courts to nullify unconstitutional laws. Parliament is always free to invoke the notwithstanding clause -- legally, anyway. If the clause now has a foul odor in the public mind, you can't exactly blame Trudeau or the Charter for that. It probably has to do with the way the clause has been used -- by Quebec, to uphold language restrictions.

Posted by: Terrence | 2010-09-29 1:31:20 PM


Btw, if anyone wants to look at the committee minutes dealing with Section 7, I'll be putting them online soon. If you are a law/politics nerd, it's interesting stuff.

Posted by: Terrence | 2010-09-29 1:38:20 PM


I believe, our country is slowly sinking into a mire of nonsense and stupidity. Decency and morality have been trashed.
More info at:
http://graysinfo.blogspot.com/2009/03/what-does-civilized-society-do-when.html

Posted by: Stephen J. Gray | 2010-09-29 3:57:28 PM


Stephen,

I agree that judges sometimes go too far when interpretation the Charter. But, again, what would you do when interpreting a phrase like "Everyone has a right to...liberty...and the right not to be deprived thereof except in accordance with the principles of fundamental justice"?

I mentioned that there was a movement to substitute "due process of law" for "principles of fundamental justice", but the politicians didn't go through with it.

So we are left with the text as it is; and we're not scrapping the Charter. That's the situation.

What would you do with Section 7? When does the law deprive someone of liberty in a way that is not in accordance with the principles of fundamental justice? What test would you rely on when deciding this?

Posted by: Terrence | 2010-09-29 4:40:04 PM


This is completely unacceptable, and Susan ought to be removed from her powers. This is an official statement.

Posted by: CHANTELLE ANNE VICTORIA GENE COLLET | 2010-09-29 4:41:17 PM


Making prostitution illegal Stephen Gray is nonsense and stupidity, get the government out of our private lives.
Serial killers always go after prostitutes, these women deserve better.

Posted by: don b | 2010-09-29 5:01:34 PM


How about sending Cruisin' Susan to a series of TV Radio call in shows to explain to Canada why her recent ruling freeing up commercial sex should become so .. she might benefit from a interface with non criminal / non judicial system Canadians..

- we're all waiting for her YouTube statement

Posted by: 419 | 2010-09-29 5:06:16 PM


This is a great victory for freedom that could herald further ones against drug prohibition. It is a paragon of moral decency to allow people to live without requiring the sanction of Big Society. Is there any way this could be used against the atrocity of Supply Management?
I read in the NP that the Cons are going to appeal. I also read that if they lose this appeal the ruling will be considered to apply to the whole country, not just Ontario. So I say bring it on!

Posted by: Cytotoxic | 2010-09-29 5:48:59 PM


Shane419 if you stood on the shore insteat of the middle of the river you might not get so wet.
Evolution is not about to bend for your sorry women hating dinosaur arse!

done and donner

Posted by: Paul Schroeder | 2010-09-29 6:00:14 PM


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