Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario Welcome Sex Work Decision From Ontario Court of Appeal
But caution that some of our most vulnerable remain targeted by current laws
Tuesday, March 27, 2012 - The Canadian HIV/AIDS Legal Network and
the HIV & AIDS Clinic Ontario (HALCO) welcome the March
26th Ontario Court of Appeal landmark decision on the constitutionality of Canada's sex work laws, but caution that sex workers who
work on the street remain unable to negotiate safer sex and are thus still extremely vulnerable to harm. This decision addresses
the laws concerning "common bawdy houses" that prohibits indoor sex work, "living on the avails" of prostitution, and the prohibition
of communicating in public for the purposes of sex work.
While sex work itself is not illegal in Canada, many of the provisions in Canada's Criminal Code make it all but impossible to engage in sex
work without risk of prosecution. All five of the Ontario Court of Appeal judges recognized that the current provisions regarding sex work
have serious and negative impacts on the security and liberty rights of sex workers by reducing the ability of individuals to take steps
to conduct their work more safely and make more informed decisions to protect themselves from harm.
The restriction on "common bawdy houses" was struck down by the Court, which found the provision in Section 210 to be grossly
disproportionate and overly broad in its application. The Court has given Parliament one year to rewrite the law or it will be rendered
The Court also revised the Section 212 prohibition regarding "living on the avails" of prostitution by limiting criminalization to
situations where there are demonstrated "circumstances of exploitation." In so doing, the Court has recognized that the provision
is overbroad and served to criminalize non-exploitative relationships.
Overall, the Legal Network and HALCO applaud the Court's decision to recognize the human rights of sex workers by making indoor work
safer and easier, without risk of prosecution. If Parliament chooses to rewrite the law regarding "common bawdy houses", sex workers
must be centrally involved in the process and closely consulted to ensure the new provisions reflect their experiences and address
their security and safety needs.
Unfortunately, three of five justices chose to uphold the provision in Section 213 concerning the criminalization of
communicating for the purpose of prostitution. The Court concluded that the provision legitimately works to reduce nuisance and
harm to communities and must be weighed against the harms it might cause to sex workers. By upholding this communication
prohibition, the law effectively makes it illegal to engage in outdoor sex work, despite the fact that sex work itself
is not illegal in Canada. Working outside is often the riskiest form of sex work, and the communication law has
serious implications for sex workers' relationships with local law enforcement and causes crimes against them
to go unreported. Furthermore, the communication prohibition seriously hinders sex workers' ability to
negotiate safer sex with clients, effectively forcing them to work in unsafe conditions. This renders
outdoor sex workers disproportionately vulnerable to violence, death and increased risk of
contracting HIV and other communicable diseases.
For more information on how Canada's criminal laws regarding prostitution affect the health and the human rights of sex
workers, see the Canadian HIV/AIDS Legal Network's booklet "Sex, work, rights: Changing Canada's criminal laws to protect sex workers'
health and human rights", available for download at http://www.aidslaw.ca/publications/publicationsdocEN.php?ref=197.
Janet Butler -McPhee
Director of Communications, Canadian HIV/AIDS Legal Network
Telephone: +1 416 595-1666 ext. 228, firstname.lastname@example.org
Reproduced with permission - "Canadian HIV/AIDS Legal Network"
Canadian HIV/AIDS Legal Network