Provincial prostitution law enforcement stuck in limbo after Supreme Court ruling

Steve Mertl
National Affairs Contributor
Daily Brew
Terri-Jean Bedford talks to reporters at the Supreme Court of Canada in Ottawa Friday morning, Dec. 20, 2013 after learning Canada's highest court struck down the country's prostitution laws in their entirety in a unanimous 9-0 ruling. THE CANADIAN PRESS/Adrian Wyld

It was predictable that when the Supreme Court gutted Canada's prostitution laws, but gave Ottawa a year to come up with new ones, there would be some uncertainty about what to do between now and then.

The late-December unanimous decision ending the prohibition on brothels, street solicitation and living off the avails of prostitution (aimed at pimps, since prostitution itself is not illegal) has triggered widely varying responses from the provinces, which enforce the Criminal Code.

Alberta, for instance, is still going after johns who solicit sex. The government issued a directive to Crown prosecutors this week after learning police were not laying charges because they didn't think the cases would be prosecuted, CBC News reported.

“The existing law will largely be followed,” said Alberta Attorney General Jonathan Denis.

Meanwhile, Ontario and New Brunswick have indicated they're backing off.

[ Related: Ontario joins N.B. in move away from prostitution prosecutions ]

Ontario plans to halt prosecution of the Criminal Code sections struck down by the high court, but will continue pursuing charges in other prostitution-related cases.

"Having carefully reviewed the Supreme Court’s decision, the Ministry recognizes that there are several prostitution-related offences under the Criminal Code which were not affected by the Court’s decision," Brendan Crawley said in statement to CBC News.

Last week, the New Brunswick government said it would drop most prostitution cases, despite criticism from federal Justice Minister Peter MacKay.

Ontario and New Brunswick would make exceptions, though, if there's evidence of sexual exploitation and human trafficking.

"It is important to note that in New Brunswick we average approximately 30 prostitution-related charges a year out of the 23,000-plus criminal charges we prosecute," said Deputy Attorney General Luc Labonté told CBC News.

Meanwhile, British Columbia is still working out guidelines for the Crown on which cases remain appropriate for prosecution.

The Conservative government signaled at the outset that it would not allow a wide-open sex trade in Canada in the wake of the Supreme Court ruling.

"We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons," MacKay said in a statement after the court's decision.

"We are committed to the safety of all Canadians and the well-being of our communities. A number of other Criminal Code provisions remain in place to protect those engaged in prostitution and other vulnerable persons, and to address the negative effects prostitution has on communities.”

MacKay issued a warning to provinces last month that suspending enforcement of the law was "not an option."

“Our government believes that prostitution is harmful to vulnerable individuals, particularly women," the minister told CBC News. "We are currently reviewing a range of options to address the harms that flow from prostitution to communities.”

But the admonition appears not to have had much impact outside of Alberta.

“Informally, what I’m hearing is that it seems like a lot of the police officers aren’t pursuing and aren’t prosecuting charges that have been found to be unconstitutional,” Anthony Moustacalis, the president of the Criminal Lawyers’ Association in Ontario, told the National Post.

“It really depends on an individual assessment of the case by prosecutors and how serious or not it may be. A lot of charges aren’t being proceeded with.”

[ Related: Supreme Court strikes down anti-prostitution laws ]

Defence lawyers in Alberta are urging the province to stay charges already before the courts, about 400 by the government's estimate, the Calgary Herald reported.

“To continue prosecuting people under these laws is really unfair and is contrary to what the Supreme Court said,” Shannon Prithipaul, president of the Criminal Trial Lawyers’ Association, told the Herald.

Police in Calgary are refocusing on the human-trafficking and child-sex aspects of the sex trade.

“We’ve put a stall on all those street-level stings at this point,” Supt. Sat Parhar of the criminal operations division told the Herald.

The Supreme Court decision had some influence on the change, Parhar said, but added much of Calgary's sex-trade has moved off the street and behind closed doors thanks to the Internet.

“It gives us an opportunity to focus on exploitation and child offences,” said Parhar.

MacKay promised last week that the government would introduce its new prostitution legislation well ahead of the Dec. 20 deadline set by the Supreme Court, The Canadian Press reported.

The justice minister has said little about what the new law would contain beyond continuing to protect women from violence and sexual abuse.

There's been speculation Canada might adopt the so-called nordic model used in Sweden and Norway that makes buying sex illegal and offers support for women who want to leave the sex trade.