Insite ruling could set stage for decision on prostitution

With the Supreme Court recently ruling as unconstitutional attempts by the federal government to shut down a supervised drug-injection site, at least one expert says it wouldn't be surprising if a separate case finds prostitution laws are also unconstitutional.

With the Supreme Court recently ruling as unconstitutional attempts by the federal government to shut down a supervised drug-injection site, at least one expert says it wouldn’t be surprising if a separate case finds prostitution laws are also unconstitutional.

At some point in the near future, the Ontario Court of Appeal is expected to issue a decision on whether to uphold a 2010 decision from Ontario’s Superior Court that provisions prohibiting operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution contravene a person’s right to safety and liberty and endanger sex workers by forcing them to ply their trade underground.

The act of prostitution — accepting money for sexual favours — is not in itself illegal.

Errol Mendes, a law professor at the University of Ottawa, said there’s a particular aspect on last week’s decision on the Insite injection site in Vancouver that could conceivably be applied to the prostitution ruling.

He notes that at issue is Section 7 of the Canadian Charter of Rights and Freedoms that guarantees “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

While the government has the right to set laws if it finds preserving order is more important than the limiting certain freedoms in some cases, Mendes said the government’s decisions “cannot be arbitrary, and it cannot be grossly disproportionate, given the facts on the ground,” referring to the Insite decision.

As harm-reduction aspects, such as reducing cases of HIV and preventing overdoses, were found to take priority over the government’s concerns such as enabling illegal activity, so too might concerns of prostitutes’ safety take precedence over other worries the government has about the sex trade, Mendes said.

Mendes’s “hunch” is that the appeal court will uphold the previous ruling on prostitution.

He added, however, that a “suspended declaration of invalidity” is likely, meaning the government would have a period of time — maybe six to 18 months — to determine how it should respond before laws are struck down.

dabma@postmedia.com

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