Canada's prostitution laws struck down by Supreme Court as unconstitutional


Female police officers pose as prostitutes in southern California during a crackdown in this file photo.


David McNew

KELOWNA, British Columbia – Saying laws to protect sex workers are having the opposite effect, the Supreme Court of Canada on Friday struck down sections of the criminal code that prohibited street solicitation, brothels and living off the avails of prostitution.

Chief Justice Beverley McLachlin delivered the unanimous 9-0 court ruling, but suspended the decision for one year so law-makers can react.

She wrote in her decision, however, that it’s not for the courts to decide if prostitution should be legal or not. 

“They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster,” she said. “I conclude that they do not.”

Three former sex workers and a long list of social agencies challenged the laws in court. They said laws, on the books for hundreds of years, forced prostitution into dangerous back alleys and were in dire need of updating.

Prostitutes were not allowed to hire bodyguards or drivers, for example, because that would be considered living off the avails.

They couldn’t conduct business in their homes, either, because that would be considered a bawdy house.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” McLachlin wrote. “The prohibitions all heighten the risks.

“They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”

Canadian Justice Minister Peter MacKay said the federal government is reviewing the decision.

We are “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons,” MacKay said online.

Valerie Scott, one of the three women behind the challenge, said the government must offer progressive solutions rather than more laws.

In an interview with CBC News, Scott said further attempts to ban prostitution will fail again and put more sex workers at risk.

“The thing here is politicians, though they may know us as clients, they do not understand how sex work works,” Scott said. “They won’t be able to write a half-decent law. It will fail. That’s why you must bring sex workers to the table in a meaningful way.”

Critics said the ruling sends a message that women are commodities to be bought and sold.

Don Hutchinson, a lawyer for the Evangelical Fellowship of Canada, said there must be one simple step: make buying sex illegal.

“If there is no replacement legislation, it’s open season in regard to prostitution,” he said, according to Bloomberg News