Wednesday, September 29, 2010

Penny for Your Thoughts? You get what you pay for...

There are troubling comments in the media in our province today regarding the effect of the Ontario Superior Court decision striking down the prostitution related provisions of the Criminal Code...and I hate to say it, but the most troubling comes from a colleague in the Calgary criminal defence bar.

David Andrews is quoted by the CBC as saying, "There is currently no law in Canada as a result of this, that will be enforced around prostitution."

With the greatest of respect, this is an extremely careless and incorrect statement.

First of all, the judgment itself does not in any way effect prostitution offences as they relate to the involvement of those prostitution laws will most certainly continue to be enforced.

Second, the judgment itself does not take effect at all for 30 days, and as such, even in Ontario - the only province where the judgment is actually legally binding in any way - even the impugned prostitution laws are still in force.

Third, while the lower or provincial court in Ontario is bound by the judgment, other Superior Court judges are not. So, a new case running the same arguments in front of a different judge of that court could result in a dismissal of the Charter arguments and convictions for the Criminal Code offences, notwithstanding the decision of Justice Himel.

Fourth, as evidenced in the same CBC story, the Calgary Police Service have publicly stated that it is business as usual as far as they are concerned. So, rightly or wrongly, the law in Calgary is going to be enforced by the same manner as it was prior to the Ontario judgment. As for a suggestion that the Crown will just not proceed with any such charges laid by the police, the Alberta Attorney General's office has already made this public statement:

"David Dear, a spokesman for Alberta Justice, said the court decision will have no impact in Alberta.

"The ruling is binding only on lower courts in Ontario, and that means the Criminal Code's provisions around prostitution remain the law in the rest of Canada," he said."

Fifth, there are provincial laws and municipal ordinances relating to prostitution which impose license fees and regulations and allow for vehicle seizures and other such consequences...none of which should be ignored as a result of the Ontario ruling.

If anyone out there is actually reading this post, I would advise that the next 30 days will tell us more about what will actually become of prostitution law in Canada, but for now, follow the law that is on the books as it was written and enforced prior to Justice Himel's decision.

Having criticized the defence lawyer side of the debate, I must say that the Alberta government approach to the issue is similarly difficult to comprehend. While completely accurate to point out that it is an Ontario ruling that by stare decisis is not binding on Alberta courts, it is almost laughable to suggest that the decision will have "no impact" in Alberta.

With all due respect, that is not something that is within Alberta's jurisdiction to decide.

The reality is that the Attorney General for Canada is a party to the proceeding in Ontario. The Criminal Code provisions in issue are federal criminal law, and not within the control of the provinces. If the federal government does not appeal Justice Himel's ruling, then it must adhere to it. No matter how badly Alberta wants to prosecute prostitution offences, if Parliament accepts defeat on this case, Alberta will have no law to enforce.

Notwithstanding the strict legal principles, one might also think that an Attorney General's office would put some actual thought and contemplation of the reasoning of Justice Himel behind its ultimate statement of policy on what effect the decision will have in her province.

I mean, as Justice Himel states at paragraph 84, the 133 page decision is the end product of a trial that included over 25,000 pages of evidence in 88 volumes presented over the course of 2 ½ years. Witnesses included current and former prostitutes, an advocate for prostitutes’ rights, a politician, a journalist, numerous social science experts who have researched prostitution in Canada and internationally, police officers, an Assistant Crown Attorney, a social worker, advocates concerned about the negative effects of prostitution, experts in research methodology and a lawyer and researcher in the Department of Justice. The witness evidence was accompanied by a large volume of studies, reports, newspaper articles, legislation, Hansard and many other documents.

In addition, Justice Himel directly received evidence from RCMP officers regarding project KARE – an Alberta programme established in 2003 and aimed at solving over 30 missing persons and 41 homicide cases arising from “high risk lifestyles” including drugs and prostitution. Since its inception, project KARE has solved only 2 of those cases and 5 more prostitutes have been killed [Para. 92 and 124].

Justice Himel also thoroughly analyzed the 1994 Department of Justice commissioned study called the Calgary / Winnipeg Study which drew several conclusions that the criminalization of communication for the purpose of prostitution potentially increased prostitutes’ level of risk by limiting their ability to screen potential customers, and pushing the practice underground [Para. 157 to 159].

Ultimately, the finding that the sections are unconstitutional is not some "technicality" setting a "john" free from criminal sanction, but is a finding that the lives of the prostitutes (the unspoken for victims of project KARE) are being imperiled unnecessarily by the current regime of criminal legislation surrounding prostitution in Canada. The almost complete lack of success of project KARE would tend to mesh quite well with Justice Himel's findings.

So, forgive me if I am just a bit disappointed that the official statement from Alberta's Justice Minister isn't something a little more erudite and compassionate than, the decision will have "no impact" in Alberta.

Frankly, I rather suspect that I am one of the few commentators on this topic that can say I have actually read Justice Himel's decision. In my view, the entire case, including the efforts of all parties, their respective lawyers, and Justice Himel and her staff is disrespected by official statements which purport to, in 10 words or less, state what the decision does or does not represent.

Personally, I don't take any side on the issue and am quite content to wait and see what unfolds over the next 30 days. Funny, I think I just wrote the statement that should have been included in everyone's official press release when asked to predict the consequences of the Ontario decision declaring criminal prostitution laws to be unconstitutional.

Just my two cents worth...

Michael Bates
Calgary Criminal Lawyers' Weekly


Anonymous Anonymous said...

Mike, I read your comments. Thought you should know. Bear

9:49 p.m.  
Anonymous Anonymous said...

I too read this when I noted that Tom Engel forwarded it to the CDL list serve. Keep up the good work Mike! Glen Luther

8:57 a.m.  
Anonymous Anonymous said...

Should there not be a list of known prostitutes.And or people arrested for this

6:59 a.m.  
Anonymous Anonymous said...

Can a person sue a drug dealer

6:47 p.m.  
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