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Canada: Government Appeals Prostitution Ruling

(Oct. 13, 2010) The federal government of Canada has appealed the September 28, 2010, ruling of a judge of Ontario's Superior Court that struck down as unconstitutional three key provisions of the Criminal Code prohibiting activities related to prostitution. (Janice Tibbets, Ottawa to Appeal Ontario Court's Prostitution Ruling, National Post (Sept. 29, 2010),
.) Justice Minister Rob Nicholson told the House of Commons that the government was taking this action because it views prostitution as “a problem that harms individuals and communities.” (Id.)

Prostitution itself is not a crime in Canada. However, in her September ruling, Justice Susan Himel found that the three provisions of the federal laws designed to effectively outlaw the activity that were unconstitutional were the ones which generally prohibit: 1) living off the avails of prostitution; 2) keeping a common bawdy house; and 3) communicating in public for the purpose of engaging in prostitution. These provisions are contained in sections 210-213 of the federal Criminal Code. (Criminal Code, R.S.C. ch. C-46, ss. 210-213 (1985), as amended, available at</spa
(last visited Oct. 12, 2010).) The Criminal Code is a federal statute that applies throughout Canada, but is enforced by provincial authorities and is reviewable by provincial courts. The reason Justice Himel found that the impugned provisions were unconstitutional was that she believed that they violate the rights to liberty and security of the person and the right not to be deprived thereof by laws that are not in accordance with the principles of fundamental justice. These rights are guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. (Constitution Act, 1982, being Part B to the Canada Act, 1982, ch. 11 (U.K.) (last visited Oct. 12, 2010).) Justice Himel found that the current laws make prostitution more dangerous than it otherwise might be by forcing women to work on the streets and depriving them of the opportunity to legally screen clients. She rejected the government's position that the laws should be upheld because prostitution is not only inherently dangerous, but also degrading to women. (Bedard v. Canada, 2010 ONSC 4264, (last visited Oct. 12, 2010).)

The decision in Bedard v. Canada is scheduled to come into force in Ontario on October 28, 2010, unless the government can show why the criminal provisions should be allowed to remain in force for a longer period of time. In constitutional cases, stays are sometimes granted to allow the government to either appeal a decision or prepare a legislative response. While similar cases are expected to be brought in other provinces, the federal government can also attempt to block the effect of the decision by obtaining a stay from Ontario's Court of Appeal or the Supreme Court of Canada.