It struck down two laws Monday, calling them unconstitutional, but upheld the ban on solicitation, saying that prostitutes should not be able to communicate with their clients in public places.
The court released a decision on an appeal of Superior Court Judge Susan G. Himel’s high-profile ruling that three provisions of the Criminal Code pertaining to prostitution should be struck down on the grounds that they are unconstitutional.
The Ontario appeal court agreed with two-thirds of Himel’s ruling, namely that the provisions prohibiting common bawdy-houses and living off the avails of prostitution, are both unconstitutional in their current form.
But the court disagreed that the communicating provision must be struck down, meaning that it “remains in full force.”
The court said it will strike the word “prostitution” from the definition of “common bawdy-house,” as it applies to Section 210 of the Criminal Code, which otherwise prevents prostitutes from offering services out of fixed indoor locations such as brothels or their homes.
However, the court said the bawdy-house provisions would not be declared invalid for 12 months, so that Parliament can have a chance to draft Charter-compliant provisions to replace them, if it chooses to do so.
The court will also clarify that the prohibition of living off the avails of prostitution – as spelled out in Section 212(1)(j) of the Criminal Code – should pertain only to those who do so “in circumstances of exploitation.”
The changes to the “living-off-the-avails” provision will not come into effect for 30 days.
Lawyer Alan Young, who represented three women who brought forward the application to have the provisions declared unconstitutional, said the appeal court’s decision had ushered in a “new era” for sex workers.
“I am thrilled that the Court of Appeal has done the right thing,” Young told reporters after the court released its judgment Monday.
“They may not have gone as far as the Superior Court judge, but when you actually look at the result, they’ve done the right thing in terms of modifying the law so that sex workers will not face the same risks they face on a daily basis.”