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Criminal

Sex trade decision will foster attitude change toward industry

The Supreme Court of Canada clarified a number of murky concepts and legal principles which have plagued lawyers and judges for many years with its decision on prostitution laws in Canada, says Toronto criminal lawyer Aaron Harnett.

"The language of the decision is remarkably clear, concise and economical," says Harnett. "The decision reads as if it were being written so that non-lawyer Canadians can understand it. This decision is one of the most significant Charter decisions in many years."

Chief Justice Beverley McLachlin writes in the unanimous 71-page decision that, “It is not a crime in Canada to sell sex for money,” striking down prostitution laws that make it an offence to keep a bawdy house, to live on the avails of prostitution or to communicate in public about a proposed act of prostitution.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” she writes in the decision. “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

Harnett says the Harper government can avoid passing new legislation and leave it to a future government, "and expect that regarding the bawdy-house and solicitation laws and let the vacuum be filled by municipalities in the form of bylaws governing property usage."

Harnett says the federal government will likely fill the “living off the avails section” quickly, "as exploitative 'pimping' will need to be controlled and the law can be re-written without infringing the Charter."

Harper can take the SCC up on its offer of re-conceiving the whole legal framework surrounding prostitution, says Harnett, "and design a scheme which addresses the criminal harm while carefully safeguarding against excesses in the law.

"It is very reassuring to counsel involved in human rights law to see the court is holding the federal government to account for criminal laws which go too far, or are sloppy and imprecise in their harmful effects on Canadians," says Harnett. "This is especially important in light of the terrible harshness the Harper government is fond of utilizing in crafting new Criminal Code amendments."

Attitudes are going to change as the sex trade becomes normalized, Harnett says, adding Canadians will grow more rational in their view of human sexuality.

"In the same way the tolerance towards homosexuality is the norm, not the exception, so too will a change happen towards the sex trade," says Harnett. "That change will happen faster than you would expect, if the gay marriage experiment is any indication."

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