Decision coming on March 26 from Ontario Court of Appeal

[Guest Ou**or**n]

I sincerely doubt the Harper government would ever allow the bawdy house provision to be struck down without replacing it with legislation that it believes would pass a charter challenge.

 

Thus I think they will adjust the wording to add exemptions to the current law. Very much like WIT showed in an earlier post the ruling gave hints at such changes. I expect they will adjust the wording to say something like bawdy houses are illegal unless they consist of a single person working at a private location (or words to that effect).

 

I expect they will not make this a big issue (not much bluster going on yet) and slip it in some big bill somewhere in the next year.

[Guest W***ledi*Time]

I'm no seer.

 

I'd guess that once all appeals are exhausted (the premise of Phaedrus' question), the Federal Government will likely choose to enact Bawdy House legislation that they believe is in compliance with the Charter, just as the Ontario Court of Appeal has invited them to do. (Earlier in this thread, I've speculated that this may involve the allowance of one-provider in-calls, while continuing the prohibition on larger or more commercial-type brothels.)

 

As Phaedrus pointed out, Municipal zoning and licensing by-laws will very likely be involved in any regulatory environment. I would hope that Canada will follow the example of New Zealand, where the small owner-operated brothels do not require registration or licensing. Or at the very least follow New Zealand in providing that the Territories which have authority for regulating location of brothels, may not ban brothels outright. (Some attempts at overly-strict zoning restrictions have been struck down in court.)

 

(Note: in New Zealand, up to 4 independant Sex Workers can work together without registration or licensing requirements.

 

Operator Certificates (i.e., licenses) are required for brothels with more than 4 sex workers, or for any smaller brothel where any worker works for someone other than themselves. Persons with criminal records (not including convictions under the old prostitution laws) are prohibited from obtaining an Operator Certificate.)

 

Of course the more restrictive the regulations and the steeper any municipal licensing fees, the greater the number of providers who will choose to work outside the regulations ("illegally").

 

Imagining such a scenario, and as Phaedrus notes, in one way it would be little different than today, where illegal in-calls currently proliferate.

 

Some differences:

 

The good news would be that penalties if caught operating outside the law would be potentially less severe if the violations were of a municipal by-law - instead of a federal criminal-code offense as it is now.

 

The bad news would be that prosecution and penalties under the current criminal-code require a higher standard when it comes to proof of guilt than do fines issued for purported by-law infractions. Lengthy investigations and high governmental prosecution costs would not be required the way they are now. By-law infractions require only a balance-of-the-evidence standard of proof to issue summary fines. If these fines were set at a high-enough level, repeated financial penalties could be devastating for those found to be working in violation of any by-laws.

 

But as I say, I'm no seer. These are a few thoughts about the possible future law and business environment - they're certainly not predictions. There are probably as many different guesses at how this all might turn out, as there are members of Cerb!

[drlove 37204]

So, what about escort agencies that offer both incall and outcall? Would they fall under the new provisions, or would the incall aspect still be considered illegal?

[fortunateone 156618]

So, what about escort agencies that offer both incall and outcall? Would they fall under the new provisions, or would the incall aspect still be considered illegal?

 

What do agencies do now regarding incalls?

 

I imagine it will depend on the answer to that.

 

 

I think some folks are assuming that massage parlours will suddenly turn into brothels. Cities are still in control of licensing businesses, that won't change. Some massage parlours have body rub licenses and are legally allowed to do hjs, but nothing beyond that from what I understand. This is not common at all to get such a license, and the majority of mps afaik do the services without the proper city licensing/

 

It might be possible for those with existing licenses to be able to start doing all sexual services, as they would (assuming complete removal of bawdy house laws) not be breaking the bawdy house law at all. No client would be arrested for being in a bawdy house, no owner could be charged with living off the avails (the other law).

 

I think the main thing is that now, and most sps will finally be comfortable setting up incalls in their own homes or even to rent a 2nd aparment full time and set up one away from home, and no longer assume they are safer doing incalls in hotels. As Samantha points out, a hotel room is not any more legal than your own home, but I have found that a lot of sps think it is. The laws have been sufficiently confusing that the majority of the public also continued to think that prostitution itself is illegal.

[bcguy42 38594]

Just some observations.

 

I don't listen to CFRA very often. I did today, briefly, while this issue was discussed and remembered why I don't listen.

 

The Harper Government (remember, we don't have a Government of Canada anymore, it is "The Harper Government") will appeal this absolutely to death. When they are finally wrestled to the mat by the courts, they will rewrite the laws to conform to the Court's decision to the absolute minimum. This is, after all, The Government That Fun Forgot.

 

Moments later, municipalities and provinces will move in with highly restrictive and expensive fees, licenses and inspections. They will also most likely put in distance restrictions that will effectively ban all activity anywhere that people might actually be. Not to equate the two (though they are equated in the minds of folks making policy these days), this map defining where sex offenders are banned in Wichita is informative. Essentially, all of the city streets fall into the restricted zone.

 

And once the kerfuffle is over and all the self-righteous folks who wish to determine what is best for everyone else feel proud of what they have achieved no matter what the cost might be in human suffering and loss if dignity, we will go back to life as it was on March 25.

 

Just my thoughts..

[fortunateone 156618]

^^ you have a point. Edmonton (and Calgary?) have already taken steps to revise their massage parlour/licensing laws, I think it is discussed elsewhere. Vancouver has also announced they will be doing something similar. I think these municipalities were looking at these issues in terms of pretty much assuming the laws would be struck down, and that at some point they should be proactive in licensing to allow for the changes.

 

I cannot see the federal government doing anything noticeably good unless/until they are forced to. That way it is out of their hands and they will not be seen to be promoting or supporting prostitution, simply following their legal obligations, or I suppose the laws being struck down, will show up and now be able to say they can't do anything about it, so sad. That way they don't have to be seen as responsible for the downfall of society by allowing prostitutes to work from home.

[cat 262460]

Just some observations.

 

I don't listen to CFRA very often. I did today, briefly, while this issue was discussed and remembered why I don't listen.

 

The Harper Government (remember, we don't have a Government of Canada anymore, it is "The Harper Government") will appeal this absolutely to death. When they are finally wrestled to the mat by the courts, they will rewrite the laws to conform to the Court's decision to the absolute minimum. This is, after all, The Government That Fun Forgot.

 

Moments later, municipalities and provinces will move in with highly restrictive and expensive fees, licenses and inspections. They will also most likely put in distance restrictions that will effectively ban all activity anywhere that people might actually be. Not to equate the two (though they are equated in the minds of folks making policy these days), this map defining where sex offenders are banned in Wichita is informative. Essentially, all of the city streets fall into the restricted zone.

 

And once the kerfuffle is over and all the self-righteous folks who wish to determine what is best for everyone else feel proud of what they have achieved no matter what the cost might be in human suffering and loss if dignity, we will go back to life as it was on March 25.

 

Just my thoughts..

 

My fear has never been what will happen federally, new laws will be written. The real threat will come provincially and municipally. We will be relegated to commercial/industrial areas unless it is written into federal law otherwise.

I have always felt that pointing out a problem without offering a solution is the most dangerous move when it comes to change. Everyone can see the issue but no one wants to take the time craft the solution. I believe that it is a tactical error to force those with no vested interest to make life altering decision for others. There needs to be a plan presented that works for us. If not, we will reap what is sown instead of what we wanted to plant.

cat

[SamanthaEvans 166767]

Cat, I agree with you, 100%. We have to be proactively part of the solution. That may be more difficult than it seems at first glance. There's a lot of public support and sympathy for street-based workers--and rightly so. But if the public were to realize how many independent paid companions are living and working in their midst, well, let's just say that it won't matter that many, many of us have been working quietly under the radar for years without causing the slightest problem for anyone.

 

We will need to advocate for ourselves. The New Zealand model for independent women who work alone or with another couple of associates is sensible and has worked well in NZ for quite awhile. City officials and neighbours need to be assured that municipal bylaws will take care of their biggest concerns--traffic, noise, disturbances--and that this kind of local management is the most effective, too.

 

As for the street-based sex workers, clearly the OCOA has sold them out. Perhaps the court was trying to toss a bone to the anti-prostitution folks or the community standards advocates; I don't know why they would make such a badly-constructed decision in the midst of what is otherwise a carefully thought-out judgment. At the same time, even though soliciting in public is a crime, no one has been arrested in Vancouver for doing it in over three years and I suspect that there's not a lot of interest in prosecuting women in other large cities. If the communicating law had been struck down it would not result in an influx of women to the street-based sex trade. The great majority of women in that sector of our industry have multiple problems and challenges that culminate in using the streets and alleys as workplaces. They're not going to work in organized brothels: they're not ready for the changes that would be required of them, unfortunately.

[joemanis 146]

This is a very interesting discussion. Once the legal process is finished, and probably gradually before that, as the risks of enforcement fall off, almost certainly massage parlours will be transformed into more-or-less open full service brothels. There are not many men who will be willing to pay for limited services when they can, without risk, get the full treatment for a similar price. Human nature and business pressures will lead to it inevitably.

[drlove 37204]

As for the street-based sex workers, clearly the OCOA has sold them out. Perhaps the court was trying to toss a bone to the anti-prostitution folks or the community standards advocates; I don't know why they would make such a badly-constructed decision in the midst of what is otherwise a carefully thought-out judgment. At the same time, even though soliciting in public is a crime, no one has been arrested in Vancouver for doing it in over three years and I suspect that there's not a lot of interest in prosecuting women in other large cities. If the communicating law had been struck down it would not result in an influx of women to the street-based sex trade. The great majority of women in that sector of our industry have multiple problems and challenges that culminate in using the streets and alleys as workplaces. They're not going to work in organized brothels: they're not ready for the changes that would be required of them, unfortunately.

 

There may yet be a silver lining in all of this. If/when the case goes to the Supreme Court, there is still a chance that the decision will favour Himmel's original ruling, and the soliciting aspect will be struck down as well. After all, the spirit of the ruling suggests that a lady's personal safety / right to work in a safe environment trumps the occasional "nuissance", and I use that term loosely, created by street prostitution.

 

Once upon a time, Halifax did indeed have a street prostitution issue (back in the late 80's and early 90's) However, this was due mainly to organized groups of pimps exploiting young and vulnerable women. In the busts of 1992 in Halifax and Toronto, the police essentially eradicated the majority of the problem. Since then, street prostitution has been barely noticeable in the city, and police have little interest in making arrests.

 

With regard to incalls / brothels, I'd love to see an agency set up shop that would be similar to those found in Germany for instance. Hopefully, legislation will not relegate these enterprises to the outskirts of the city, as it would make it rather inconvenient and affect traffic volume. I wonder if perhaps the ruling itself would embolden agencies to consider opening in the downtowns and surrounding areas regardless. I know of incalls that operated for many years under the existing laws with relative impunity. Everyone knew they were there, but LE showed little interest, aside from the occasional bust stemming from public pressure at the time. However, in general it would seem that the police would rather focus their resources elsewhere, and with the new changes in the laws I suspect this trend will continue.

[Phaedrus 209521]

This is a very interesting discussion. Once the legal process is finished, and probably gradually before that, as the risks of enforcement fall off, almost certainly massage parlours will be transformed into more-or-less open full service brothels. There are not many men who will be willing to pay for limited services when they can, without risk, get the full treatment for a similar price. Human nature and business pressures will lead to it inevitably.

 

Why on earth would you think that? There are independent MAs around who don't offer FS, and they remain popular despite the existence of independent SPs who do. The creation of brothels would in no way mean that MPs as they exist today would become extinct.

 

As for the rest of your post... I really don't think that throwing allegations like that around is helpful. I have no idea of the truth of what you say; I do know that most folks here don't wish to see a fight started over it. Stop it.

[fortunateone 156618]

Why on earth would you think that? There are independent MAs around who don't offer FS, and they remain popular despite the existence of independent SPs who do. The creation of brothels would in no way mean that MPs as they exist today would become extinct.

 

As for the rest of your post... I really don't think that throwing allegations like that around is helpful. I have no idea of the truth of what you say; I do know that most folks here don't wish to see a fight started over it. Stop it.

 

 

I agree, and without being too open about things, massage parlours outside of Ontario always offer more than R&T. It doesn't mean the MAs in mps are going to be open to doing more, or that the clients who go there necessarily want more. If they wanted more, they wouldn't be at an Ontario mp, they would visit an independent or agency sp.

[SamanthaEvans 166767]

Well, they had 30 days to file an appeal, so technically, there's nothing wrong with taking their time, I suppose.

 

I think the feds will have a tough, uphill battle before them since the Ontario Court of Appeal upheld the lower court's affirmation about workers' rights to work safely. The government will have to figure out a way to argue that prostitutes are a special class of people who, though working legally, shouldn't be able also to work safely. The OCA didn't buy it and I don't think the SCC will, either.

 

Not surprising, though, that the feds are employing scare tactics, invoking the specter of ladies of the night damaging otherwise quiet, law-abiding neighbourhoods with constant traffic and disturbances from our myriad bodyguards and drivers! The notion that the streets will be littered with used condoms is also ridiculous since, if the women are working indoors, any condoms scattered in lanes and alleys must come from somewhere else.

[backrubman 64800]

I think the feds will have a tough, uphill battle before them since the Ontario Court of Appeal upheld the lower court's affirmation about workers' rights to work safely. The government will have to figure out a way to argue that prostitutes are a special class of people who, though working legally, shouldn't be able also to work safely. The OCA didn't buy it and I don't think the SCC will, either.

 

I think you nailed it in a number of ways Samantha. I'm still not convinced, until I hear otherwise officially, that the Supreme Court is stupid enough to have a third go at it.

 

It is well within their ability, to say "nope, not going to hear the case" and nothing further on the matter which in many ways would be very much simpler for them as they get to make a decision without having to make a decision.

 

If they do take it on, it will be due to political pressure and then the result like you so correctly point out is already decided (as the other two courts were not in error).

[Guest W***ledi*Time]

I myself am of the opinion that Bedford v Canada deals with a significant issue for the rights of individuals and society. As such, I strongly believe that it does fall squarely within the mandate and responsibility of the Supreme Court.

 

Leave to appeal is given by the Court if ... the case involves a question of public importance or if it raises an important issue of law (or a combination of law and fact) that warrants consideration by the Court. The Court grants leave to appeal based on its assessment of the public importance of the legal issues raised in a given case.

 

http://www.scc-csc.gc.ca/court-cour/role/index-eng.asp

[Guest Ou**or**n]

Personally I'm glad to see this appealed as I strongly disagreed with the Ontario Court of Appeal in their decision to uphold the ban on communication. As I've stated before the reasoning in their decision was deeply flawed. Hopefully the SCC will rule wisely.

[SamanthaEvans 166767]

I myself am of the opinion that Bedford v Canada deals with a significant issue for the rights of individuals and society. As such, I strongly believe that it does fall squarely with the mandate and responsibility of the Supreme Court.

 

I agree with you, WiT. In a way, one might consider that the feds are taking a wise direction in that the OCA warned them of their obligation to draft legislation that's consistent with the Charter, which they clearly don't want to do. The HarperCons are quick to criticize the SCC for making legislation but, since they're not likely to draft something that will survive an eventual SCC challenge, this may be the easiest way to a resolution. The SCC will take seriously that their decision will last for a generation or so, whereas the feds think within shorter-term, political parameters.

 

Personally I'm glad to see this appealed as I strongly disagreed with the Ontario Court of Appeal in their decision to uphold the ban on communication. As I've stated before the reasoning in their decision was deeply flawed. Hopefully the SCC will rule wisely.

 

On the whole, I expect the SCC will uphold the OCA, particularly since the OCA largely endorsed Justice Himmel's decision. The SCC has shown enormous reluctance to overturn appeals that supported lower court judgments. I hope the SCC rejects the communication ban, too. It's very badly written and looks like an awkward compromise, an attempt to give something to the losing side. Perhaps Bedford et al will be able to point out how the communication law is mostly being ignored by the police in all of the major cities without any obvious disintegration in the moral fabric of Canadian society. I guess we'll have to wait and see what happens!

[SamanthaEvans 166767]

I've heard several radio news reports this evening in which the federal gov't representative has said that they feel obligated to appeal because relaxing prostitution laws puts women in danger.

 

Isn't that amusing? The point Justice Himel and the OCA were making is that prostitution is unsafe as it is now. Changing the restrictions is the best way to make it safer for women to work.

[Guest My***tLixx]

I've heard several radio news reports this evening in which the federal gov't representative has said that they feel obligated to appeal because relaxing prostitution laws puts women in danger.

 

Isn't that amusing? The point Justice Himel and the OCA were making is that prostitution is unsafe as it is now. Changing the restrictions is the best way to make it safer for women to work.

It's going to the Supreme Court now, and what ever they decide will apply to all of Canada, not just Ontario...hope it works out for all of us in our favour!!

[Nikki Thomas 23145]

Just a quick note that the SCC has agreed to extend the stay on the striking down of the Living on the Avails - S.212(j) - provision for an additional 30 days. It seems increasingly likely the SCC will agree to hear the case, and from what I've heard, the government will drag their heels on this one, and will take their sweet time allowing it to be heard.

 

One rumour I've heard is that Harper is terrified this will become an election issue, given the wide gap between public opinion (the large majority whe now favour decriminalization) and his party's social conservative base (who do not). If they have their way, the final judgment won't come down for at least three years.

 

In other words, if you were hoping for a quick resolution to this issue, don't hold your breath. On the bright side, at least this gives us lots of time to start developing dialogue with the municipal governments, in hopes of avoiding overly-restrictive bylaws for when sex work is finally decriminalized - something we've already started doing.

 

Fingers crossed and stay tuned!

[SamanthaEvans 166767]

Just a quick note that the SCC has agreed to extend the stay on the striking down of the Living on the Avails - S.212(j) - provision for an additional 30 days. It seems increasingly likely the SCC will agree to hear the case, and from what I've heard, the government will drag their heels on this one, and will take their sweet time allowing it to be heard.

 

I was wondering about this!

 

But what does it mean that the SCC has extended the stay for 30 more days? In 30 days, will it then become legal for companions to hire staff? Or will there be another extension? I don't understand what's so magical about a 30 day delay, frankly. I also don't understand what the real, practical issue is that the court may be trying to assess when it comes to the implications of companions having drivers or receptionists or living with someone else who is not a pimp.

[Guest W***ledi*Time]

... In 30 days, will it then become legal for companions to hire staff? Or will there be another extension?...

 

I'd guess that the choice of an additional 30 days may be connected to the fact that this will now take the extension to a total of 60 days after the date of the OCA judgement. 60 days is the deadline for serving the official Application with the SCC for Leave to Appeal. The SCC would, I presume, decide at that time whether or not to extent the stay still further. (And I myself would speculate that the SCC would then most likely choose to extend the stay, pending a final decision on the appeal in the SCC itself).

[Nikki Thomas 23145]

But what does it mean that the SCC has extended the stay for 30 more days? In 30 days, will it then become legal for companions to hire staff? Or will there be another extension? I don't understand what's so magical about a 30 day delay, frankly. I also don't understand what the real, practical issue is that the court may be trying to assess when it comes to the implications of companions having drivers or receptionists or living with someone else who is not a pimp.

 

From the SCC's website:

 

Order by, Ka, UPON APPLICATION by the Applicant, the Attorney General of Canada, for an interim order extending the 30-day stay of the decision of the Court of Appeal for Ontario to read in words of limitation into s. 212(1)(j) of the Criminal Code;

AND FURTHER TO MY ORDER OF APRIL 25, 2012;

AND HAVING READ THE MATERIAL FILED;

I am satisfied that it is in the public interest to grant an interim stay in order to maintain the status quo for the relatively short period of time until the motion for a stay is finally disposed of.

THEREFORE IT IS HEREBY ORDERED THAT an interim stay is granted

Granted

It's basically a 30-day window for them to decide whether they will issue an unlimited stay (which would keep the laws in place until the SCC issues its final judgment) or a shorter stay, in hopes of expediting the hearings (which the OCA did in November 2010). This assumes that the SCC agrees to hear the case, which we fully expect it will.

 

I can't say for certain, but the "relatively short period of time" comment suggests that a blanket stay is by no means inevitable. The Crown will argue that no one will be harmed by extending the stay, but as Alan Young will argue, we will continue to be vulnerable while this law remains on the books, because we will be prevented from taking the most basic steps to ensure our security. Given that the challenge was successful because it used a Section 7 (Security of the Person) argument to show the laws were unconstitutional, it's a strange position for the government to take. The courts ruled that our security is significantly compromised by these laws, and yet the Crown will argue that our security will not be compromised by maintaining the status quo.

 

I personally think that it's just one of many procedural delays that the government will use to try to delay the hearings, and by extension, the eventual judgment. They waited until the last possible moment to apply for this extension (much to Alan Young's chagrin, because he had to quickly juggle his schedule around so he could attend the hearing in Ottawa) and they have shown a huge lack of professional courtesy throughout the proceedings.

 

The only silver lining in all this is that the laws are essentially unprosecutable, in that nobody who is charged with a violation will actually stand trial until the matter is settled by the SCC. You can still be arrested and charged (and, if it's a Bawdy House charge, have all your belongings seized) but there's not a trial judge in Canada who will actually hear your case until the matter is resolved. So, for what it's worth, at least we're not looking at jail time for running an incall anymore.

[Guest Ou**or**n]

I agree with WIT. Given the length of time this case will take with the SCC if they allowed the living off the avails portion to become legal then it pretty much would become defacto legal for several years and thus harder to overturn.

 

I also agree that the Harper regime would rather this issue go away as they are between a rock and hard place. I think they want to make it seem they are fighting this to appease their loony right base supporters. However I think barring a miracle we will be under a conservative majority for quite some time in this country as I doubt either the Liberals or NDP will ever gain enough strength to form a government in the next election.

 

My guess is that in 2-3 years time the SCC strikes it down and the conservatives follow up with as much legislation as they can without provoking another charter challenge. They will also be looking into the decision for clues on areas where they can legislate. One has to remember that the Tories are in power now largely because they have stayed in the middle and pushed out the liberals. Heavy handed legislation in this area will alter this balance and jeopardize their hold on power. Look how Wildrose lost in Alberta when some of its loose canon candidates went too far into loony right territory.

[drlove 37204]

I agree with WIT. Given the length of time this case will take with the SCC if they allowed the living off the avails portion to become legal then it pretty much would become defacto legal for several years and thus harder to overturn.

 

I also agree that the Harper regime would rather this issue go away as they are between a rock and hard place. I think they want to make it seem they are fighting this to appease their loony right base supporters. However I think barring a miracle we will be under a conservative majority for quite some time in this country as I doubt either the Liberals or NDP will ever gain enough strength to form a government in the next election.

 

My guess is that in 2-3 years time the SCC strikes it down and the conservatives follow up with as much legislation as they can without provoking another charter challenge. They will also be looking into the decision for clues on areas where they can legislate. One has to remember that the Tories are in power now largely because they have stayed in the middle and pushed out the liberals. Heavy handed legislation in this area will alter this balance and jeopardize their hold on power. Look how Wildrose lost in Alberta when some of its loose canon candidates went too far into loony right territory.

 

Perhaps by the next federal election, The Conservative's popularity will have waned to the point where it's a minority government. Who knows? However, I'd like to see the Liberals and the NDP join forces and overthrow the present dictatorship! lol