When buying and selling sex in Canada is legal, how do you decide what parts of Canada’s Criminal Code criminalizing prostitution-related activities are unconstitutional and deserving of abolition?



Look at the decision from the Ontario Court of Appeal in Canada v. Bedford 2012 ONCA 186 and recognize that while you still cannot communicate in public or in a motor vehicle to discuss the sale of sex, you can sell sex, just like before, without fear of arrest, and in twelve months you can legally offer sexual services from your own bedroom, without being charged for running or occupying a “common bawdy-house”.



So, what is a “common bawdy-house”? The words are used interchangeably with “brothel” and connote vulgarity, indecency, and debauchery. The Ontario Court did not strike down the law on keeping or occupying a common bawdy-house, rather they deleted the word “prostitution” from the definition section which now reads:



“a common bawdy-house is a place kept or occupied for the purpose of prostitution or the practice of acts of indecency”.



With one stroke of a judicial pen, sex workers can soon legally offer their services from their home, an option that was otherwise unavailable to them. Without this change in the law, sex workers can only work the streets or meet their “dates” in a hotel or a client’s home.



The crime of keeping or occupying a common bawdy-house was legislated to combat neighbourhood disruption or disorder and safeguard public health and safety, however, the Court today ruled that the safety of working girls is more important than maintaining a quiet neighbourhood, recognizing the extreme risks of harm that befall street sex trade workers.



The Court also held that the law against “living off the avails of prostitution”, while intended to target pimps, was inadvertently outlawing reasonable services required by prostitutes including drivers, spotters, and bodyguards. Thus, the Court inserted language into the Criminal Code that only bars commercial relationships between prostitutes and their service providers where the relationship is conducted “in circumstances of exploitation”.



The decriminalization of these Criminal Code provisions raise difficult issues that fall along ideological lines. Prime Minister Harper is on record as saying that prostitution is bad for society and harmful to communities. .



Meanwhile liberal factions believe the Court’s tinkering with the law does not go nearly far enough. They seek complete decriminalization of prostitution laws as modeled by the Netherlands experience.



For Canadians, the jury is out until the Supreme Court of Canada rules on the issue or the Harper government takes a stab at enacting laws that maintain the illegality of prostitution-related offences without offending the Charter of Rights and Freedoms and the protection of life, liberty and security of the person.