Split Decision on Bedfor vs Canada.

PDF of full decision is available here.

Short version, vial Galdin Law:

Ontario Court of Appeal upholds Himel’s ruling on 210 and 212(j), but overrules her judgment on 213(c).
Which means:

Opperating a common bawdy-house for the purpose of prostitution [Section 210] will, as of one year from now (~April 26, 2013), be legal. Full-stop. (The one-year period where we’re kind of in limbo, though, leaves me with a lot of questions — questions like, “There wasn’t a lot of policing of the bawdyhouse law before… will this continue to be the case, or will there be a significant push-back because of this ruling that leads to a lot of people getting busted under a law that doesn’t have much time left?”)

Living off the avails of prostitution [Section 212(1(j)] is… not struck down, but appears to have a narrower reading. More on that, below. It’s modification comes into effect on April 25th, 2012.


Communication for the purpose of prostitution in public [Section 213(1)(c)] is still illegal.


What does this mean?

Basically, if you can work indoors – and most sexworkers can, and already do – and if you can communicate privately (again, most sexworkers can, and do, do this already), you’re okay to work – starting one year from now.
Theoretically, at least, if you hire someone (body-guard, secretary, driver, photographer…), or support someone (kids, spouse, aging parents…), using your sexwork wages, you – and they – are okay, too. (See excerpt, below)

From the PDF of the decision (starting on Pg. 97):
[238] While Downey concerned the constitutionality of the presumption in s. 212(3),14 we see no basis for departing from the objective identified by Cory J. in that case for the living on the avails offence. We also accept that, situated as it is in s. 212 (which deals more generally with procuring), this offence aims to protect vulnerable persons from being coerced, pressured or emotionally manipulated into prostitution. As we have already said, we do not accept the broader submission of the Attorney General of Ontario that this offence reflects a Parliamentary objective to eradicate prostitution.
[239] In short, we agree with the application judge that the objective of the living on the avails provision is to prevent pimps from exploiting prostitutes and from profiting from the prostitution of others.
[240] The application judge found that the prohibition against living on the avails of prostitution infringes the principle against arbitrariness. As we just explained, she identified the objective of the legislation as preventing the exploitation of
prostitutes and profiting by pimps from prostitution. The legislation as drafted and interpreted, however, prevents a prostitute from hiring a security guard, a personal driver, or an assistant who could work to reduce the risk of violence. The application judge therefore reasoned that the effect of the legislation could not be said to be connected to, or consistent with, Parliament‟s objective. As she said, at para. 379, “it may actually serve to increase the vulnerability and
exploitation of the very group it intends to protect”.
[241] We do not agree with this analysis. To return to the test enunciated in Rodriguez, a provision is arbitrary only where it bears no relation to, or is inconsistent with, the objective that lies behind the legislation. In prohibiting persons from living on the earnings of prostitutes, the legislation prevents the exploitation of prostitutes and, in particular, prevents pimps from profiting from prostitution. The legislation may be overbroad, a matter to which we will turn shortly, because it captures activity that is not exploitative, but that is not the same as arbitrariness.
[… from page 103]
[253] The application judge found that s. 212(1)(j) is grossly disproportionate because it prevents prostitutes from hiring bodyguards, drivers, or others who could keep them safe, and may actually increase the likelihood that prostitutes will be exploited by forcing them to seek protection from those who are willing to risk a charge under this provision.
[254] We agree with this analysis. If the living on the avails provision were narrowly tailored to target pimps or others who exploit prostitutes, it could pass constitutional muster. But the section does not simply target pimps, and its effects reach the safety and security of prostitutes. The state response is out of all proportion to the state objectives. While the provision is ostensibly aimed at protecting prostitutes from harm, it prevents them from taking measures that could reduce harm and at worst drives them into the hands of the very predators that the law intends to guard against.
[255] The living on the avails provision is the sole section under consideration in this appeal that has the protection of prostitutes as its objective. That part of its effect may be to increase the risk of harm to prostitutes falls comfortably within
the concept of per se disproportionality.
[256] As with the bawdy-house provisions, we conclude that s. 212(1)(j) cannot be justified as a reasonable limit under s. 1 of the Charter because it is overbroad, and its effects are grossly disproportionate to its objectives.
[… from pg. 107]
[267] We conclude that reading in is an appropriate remedy to cure the constitutional infirmity of s. 212(1)(j). Specifically, we would recast the provision by reading in the underlined words:
Everyone who lives wholly or in part on the avails of
prostitution of another person in circumstances of
exploitation is guilty of an indictable offence…
[268] In our view, reading in the phrase “in circumstances of exploitation” remedies the constitutional problem. That phrase provides a sufficient degree of precision. It introduces the requirement that the accused has unfairly taken advantage of a prostitute in his dealings with her. Thus, where the accused is providing services to the prostitute for the purpose of her prostitution, absent proof of exploitation, no offence would be committed[…]

As for Communication [Section 213(1)(c)], though…
When the appeal first went before the court, my girlfriend said something along the lines of: “This is probably going to fall out as indoor workers are fine, and street-workers are still vulnerable as hell”.
And, oh look, she was right.

From the PDF of the decision (starting from Pg. 118):
[293] On the first point, the application judge accepted, at para. 418, that the provision reflects the legitimate state interest of curbing the social nuisance associated with public solicitation for the purpose of prostitution. In particular, the law seeks to target problems including traffic congestion, noise, harassment of persons in the area, and the harmful effect of the open display of prostitution on bystanders, including children.
(Emphasis mine).

This is not okay.

Maggie’s tweeted the following in response: “I reject the conclusion that street work is so bad for neighborhoods that stopping it is more important than protecting women’s lives.”
Local indoor workers responded, likewise, with:
“It’snot a valid legislative aim to prioritize home/business owners’ concerns [about social nuisance] over the lives of sexworkers”
“The ruling of the court of appeals throws the most vulnerable sex workers under the bus”

While street-based sexworkers make up a minority – 5%-10% in Ottawa, for example – of the sexworker population, they are also the most vulnerable segment of it – recieving 90%+ of sexwork-related criminal charges, as well as being vulnerable to violence and harrassment from police, asailants, and vigilante “community groups”. And this ruling does nothing to prevent that from continuing. I, too, am disappointed with this ruling.

I know that there isn’t really any question of this Decision going before the Supreme Court of Canada – no matter what this latest ruling is. But, for the moment, I’m left with questions.
Questions like:
Will the bawdyhouse law – which won’t be formally struck down until next year – be enforced more heavily? Will the current government – one that is pretty notoriously anti-sexwork (among other things) – take this year of limbo to push for a rewriting of the bawdyhouse law in some way that allows it to remain on the books as applying to sexwork? Will the definition of “exploitation” be stretched and warped, or will the addition of “in circumstances of exploitation” to the Living Off the Avails law allow sexworkers to hire support staff, and support their families, without threat of legal/police action? Will law enforcement – locally and across the province – take this time to turn over a new leaf and build bridges with the sexworking community? Where do we go from here?

Time will tell. For now, we wait.
For now, we organize, educate, resist, and work. Just like we’ve always done.

Relevant links
POWER’s press release
CBC News Article
Globe and Mail article (with a gem of a first sentence – you’re warned)
Maggie’s press release
PIVOT summary
SPOC Press Release
Huffington Post weighs in

Ms Syren.