Canada's top court has overturned all restrictions on prostitution

http://www.aljazeera.com/news/americas/2013/12/canada-lifts-all-restrictions-prostitution-2013122015318412319.html

by kostyk • 13 years ago

303 213 13 years ago

aljazeera.com

draugadrotten• 13 years ago

Sex workers may not have another choice, but the clients do.

collyw• 13 years ago

I am quite sure there are clients that don't have any other choice for sex.

colmvp• 13 years ago

Indeed.

Let's not pretend everyone has it equal.

GFK_of_xmaspast• 13 years ago

I wonder what the PUAhate forums are thinking about this, but like fuck I'm gonna go check. (https://twitter.com/puahate_txt)

Raphmedia2• 13 years ago

Most people who turn to sex workers are people that have no access sex otherwise or who need, for some reason, to go see elsewhere.

Three choices here: 1. Prostitution 2. Rape 3. One nights

One is an health risk, another is simply wrong... prostitution is expensive.

I would gladly give those people access to better, healthier, more regulated services.

mooism2• 13 years ago

Fourth choice: do without sex.

marquis4• 13 years ago

I'm a little biased on the issue because my friends (male and female) who have been working as prostitutes have all had mental health or sexual abuse issues (or as the top post says, trans women who have limited options). I'd give anything for prostitution not to be a viable business anymore, but I'm also reasonable enough to understand the complexities of humanity and would rather it be completely legalised, safe and regulated with full health care and police access. It won't be in our lifetimes that we see this profession gain the safety results it deserves (too many outlier factors, trafficking, underground abuse, drugs) but the only way to get closer to a system of genuine safety is total legalization. I applaud Canada and any other country looking to strengthen or improve its rights for prostitutes and clients.

buttsex• 13 years ago

4. Masturbation

I wouldn't count rape as an alternative to sex. It's more about having power over someone in a disgusting way.

PavlovsCat3• 13 years ago

Three choices here: 1. Prostitution 2. Rape 3. One nights

4. Masturbation 5. Cold Shower 6. Abstinence

king_jester• 13 years ago

Sex workers may not have another choice, but the clients do.

Of course a client has a choice and the choice to use services offered by sex workers is just as valid as choosing not to. Even if you don't care for it yourself that doesn't justify the status of law as it is today.

Karawebnetwork• 13 years ago

Remember that in Canada, prostitution was already almost legal. You could prostitute yourself so long as you didn't harass customers or walk up to people and offer your services. You could however put ads in the newspaper for "Angela, 38DD, busty and hot, will massage you... all over".

One of the things that you couldn't do was also very hurtful. You couldn't team up with other street workers in order to insure your safety. That would be a whorehouse, and they are illegal.

So, you end up with girls in the streets, with no security, who cannot even talk straight about what they were willing and not willing to do.

I'm very happy that those laws are lifted. And it doesn't come out of the blue. There has been discussions about in in the media in recent years, and I believe that most people understood that forbidding those girls to have security is an idiocy.

lazyant• 13 years ago

From what I understand, johns where being arrested for solicitation.

parfe2• 13 years ago

Good. Solicitation threatens girls and women simply walking in their own neighborhoods.

stcredzero• 13 years ago

It used to be when I was an undergrad, and probably still is, that a certain number of unmarried women living under one roof was defined a brothel under New Hampshire law. This meant a lot of women's dormitories fell under the definition.

speleding• 13 years ago

Prostitution in the Netherlands went through a similar transition a few years ago, it's now fully decriminalised.

The results have been mixed however. It has created a new market of prostitutes, typically illegal immigrants forced into it by human traffickers, who are willing to do more for less than the legal ones. Meanwhile the legal ones are forced to pay taxes with all the paper work that comes with it, since they are now first class citizens, and they are understandably unhappy about that and typically try to evade taxes, making their activity illegal again.

I don't think criminalising it again would be a good idea, but there is no easy solution for this issue.

altero3• 13 years ago

In Germany they went one step further. Prostitutes are registered workers, they pay taxes and must pass monthly health checks. They also get unemployment support and state pension after retirement.

On other side many people lost unemployment support, because they refused to work in brothel as cleaners or maintenance personnel.

chimeracoder• 13 years ago

Prostitutes are registered workers, they pay taxes and must pass monthly health checks.

I fully support this. STIs are one of the biggest public costs of prostitution.

(Yes, this is a public cost. Every time a new person is infected with (e.g.) HIV, from an epidemiological perspective, that increases the chances of some copy of the virus in some person mutating into a virulent - even airborne - version. This is why you should care about HIV infection rates, even if you practice safe sex and don't use IV drugs, etc.[0])

On other side many people lost unemployment support, because they refused to work in brothel as cleaners or maintenance personnel.

How is that any different from refusing to work in a hotel or a hospital as a janitor (or even as a nurse[1])?

They may not like the line of work, but that's no different from disliking taking a job at Halliburton. While I sympathize with the goal of choosing a job ethically, in the US (not sure about Germany), unemployment benefits and requirements aren't designed with that in mind.

[0] Even "curable" STIs are a public health problem We are already on the verge of creating - if we haven't already created - strains of gonorrhea that are resistant to all antibiotic treatments.

[1] You wouldn't believe some of the stuff nurses in hospitals have to put up with on a daily basis.

altero3• 13 years ago

Some of my relatives are nurses so I know well. There is big difference, just try to say: "I work in brothel!". Plus once employed one must follow work rules such as uniform...

Not sure what is situation in US. But in contimental Europe one pays a lot of money on social tax (about 10% of salary). And government will jump through hoops to pay as little as possible.

foobarqux3• 13 years ago

What do you do about sex workers that become infected? How much more desperate can they get?

civilian• 13 years ago

Almost lost my coffee:

Every time a new person is infected with (e.g.) HIV, from an epidemiological perspective, that increases the chances of some copy of the virus in some person mutating into a virulent - even airborne - version

More virulent, sure I'll grant that. But airborne?! HIV is in the Lentivirus family of Retroviridae. They're slow to reproduce, and airborne viruses need to be expelling many viral particles into the air to transmit. Additionally-- from where would HIV aerosolize?

The only airborne retrovirus that I came across is Jaagsiekte, and it's benefited by that because it specifically targets the lungs. http://en.wikipedia.org/wiki/Jaagsiekte_sheep_retrovirus

HIV already has lower transmission rates in genital->throat scenarios. It has too many evolutionary hurdles to become an airborne virus. If HIV does oneday become airborne it's morphology would look so different that we'd classify it as something else.

Rhinoviruses (the virus that causes the common cold) are easily aerosolized because they're tiny and are in a protein capsid.

Sorry, that was maybe an overkill explanation, and the core of your statement ("more virulent") is correct. It just triggered some nerding out :D

_stephan2• 13 years ago

AFAIK, most sex workers in Germany are self-employed, so they neither get unemployment benefits nor a national pension (since they also don't contribute to these insurance systems).

Do you have any source for your statement on many people loosing unemployment benefits for refusing to work in brothels ? That sounds quite fishy.

altero3• 13 years ago

Even some self-employed people have to pay social insurance. Plus one can opt-in voluntary, it makes sense if one retires after a few years into normal job.

I have no credible source I could post here. However the work is for _SUPPORT_ personnel, not actual prostitutes.

ctdonath• 13 years ago

Many people also lost unemployment support because they refused to work as primary service providers therein.

_stephan2• 13 years ago

Are you trolling?

bitbckt• 13 years ago

Nevada has legally required weekly health checks since 1937.

nawitus• 13 years ago

On other side many people lost unemployment support, because they refused to work in brothel as cleaners or maintenance personnel.

It's my understanding that what you've said is a myth. In any case, all reasonable social security policies have a "ethical objection clause", e.g. people can't be forced to work in occupations that they ethically object to - and this should mean that social security should be impossible to lose for refusal of employment.

JoeAltmaier• 13 years ago

Not all janitors are policy wonks. "Impossible" is a strong word. Perhaps "they are unjustifiably losing their benefits" would fit the facts better.

angersock3• 13 years ago

One wonders...what is the legality of running a "service provider" from the US but incorporated in Canada for something like this?

Like, say, a scheduling/reservation app for this?

jmccree• 13 years ago

Next big idea: Uber for sex.

angersock3• 13 years ago

I'm pretty sure the Vooza guys already joked about this.

EDIT:

Finally, a use for all those questionably-named Rails gems!

saraid216• 13 years ago

Grindr?

dobbsbob2• 13 years ago

US will extradite the owners. Better be anonymous

kfcm5• 13 years ago

IANAL. But stop and think.

If "the activity" or "act" takes place in the US, it would still be illegal.

If you have a pimping/pandering company based in Canada, offering services in the US, those on the US side could possibly face even higher charges of international human trafficking. (cf, the Mann Act: https://en.wikipedia.org/wiki/Mann_Act )

The US can arrest its citizens for their behavior in foreign countries where their behavior violates US law, whether said activities are legal or illegal in said foreign countries. One could say US law follows the citizen. (cf, UNITED STATES v. PASSARO [extension of jurisdiction over US Gov. contractors], US PROTECT ACT [anti-child exploitation], etc)

The US can also deny visas to foreign nationals based upon what US law considers "moral turpitude", even though such may be legal in their home country. Relevant to this story, the US could deny a high visibility prostitute into the US, because most US states (and federal law, see MANN ACT) prohibit prostitution. (cf, INA 212(a)(2)(d): http://www.uscis.gov/sites/default/files/ilink/docView/SLB/H... )

This would not be a great idea.

GrinningFool4• 13 years ago

I also ANAL. Hm. That came out wrong. Anyway...

"The US can arrest its citizens for their behavior in foreign countries where their behavior violates US law"

I believe that this is specific to federal law, and not state - and to my knowledge, state laws are the ones that specifically make prostitution illegal. There are federal laws that say I can't try to bring someone across the border for the purpose of prostitution in the US[1], but I think that's that extent of it.

[1] http://codes.lp.findlaw.com/uscode/8/12/II/II/1182

pervycreeper4• 13 years ago

Haha, it would be quite a coup for tech to disrupt the "world's oldest" industry.

I imagine that doing something across jurisdictions could actually make things worse (I'm speaking as a non-lawyer and general ignoramus here). Maybe if you maintained plausible deniability at all times. Might be worth consulting a lawyer considering the size of the industry ($$$). OTH, there are other potential sources of liability than legal (going up against organized crime might prove more difficult, than say taxicab unions, for instance).

angersock3• 13 years ago

I mean, I think the way to do this would be to pitch it the Canadian equivalent of the Health and Human Services department--they host the app backend, and offer scheduling and reservations, and send health checkup reminders. In return, they get to monitor the profession and help encourage safe sex.

Seems like a win for everyone.

pain_perdu• 13 years ago

came here hoping for a comment like this...was not disappointed.

notastartup2• 13 years ago

good good. now PLEASE legalize marijuana, tax it to pay off the olympic debt and free Marc Emery.

sliverstorm2• 13 years ago

This article is about Canada.

ehPReth• 13 years ago

I think (s)he knows that, the references all apply to Canada.

dmix• 13 years ago

Here is the court case that brought this ruling: Bedford v. Canada

https://en.wikipedia.org/wiki/Bedford_v._Canada

tedivm• 13 years ago

As anyone who has actually read any of the articles about this can tell you, they did not actually overturn squat. The laws are still in effect and still being enforced. What happened is they gave the legislature a year to revise the laws to make them constitutional, but until then nothing has changed and there's a good chance these laws will be revised before the deadline.

corresation2• 13 years ago

The nature of the laws would have to change significantly as the court found the entire foundation behind the laws (largely moralizing/restricting the actions of others based upon personal values) unconstitutional. The government can't simply move a couple of punctuation marks and become compliant.

RyanMcGreal3• 13 years ago

Due to the Court's reasoning - i.e. if prostitution is legal, it violates people's rights to prevent them from taking steps to protect their safety while engaging in it - I predict the government will react by making prostitution itself illegal.

patmcc2• 13 years ago

Actually they can: http://en.wikipedia.org/wiki/Section_Thirty-three_of_the_Can...

Parliament can specifically say "we know this law is unconstitutional, but we like it anyway, so it's staying for 5 years. And then we can renew it if we want." They may not want to do that, as it's a pretty strong thing to do, but they are absolutely able to.

VladRussian2• 13 years ago

The nature of the laws would have to change significantly as the court found the entire foundation behind the laws (largely moralizing/restricting the actions of others based upon personal values) unconstitutional.

following that logic most laws would be unconstitutional.

undoware6• 13 years ago

I'm heartened by the response to this, both on Hacker News and elsewhere.

Being a trans woman in IT is a bit weird -- because I can do incredible things with my mind, I'm off the hook my sisters are on, that makes them have to hook.

Several roommates ago, I literally came home and found that my (also trans) roommate, who in addition to being trans was also dealing with immigration and had recently lost her job and had begun turning tricks at home. Had I not come home early from the university, I wouldn't have known.

And I've always hated the Canadian legal system for making me kick her out. Because just being her roommate, under the previous legislation, would have classified as 'living off the avails' and would have made me legally indistinguishable from her pimp. Just for being her roommate.

That's the sort of pauperizing, soul-crushing bullshit that you never, ever forget.

Also, I'm a big fan of Katrina Pacey, the lawyer mentioned in the article. I've worked with her a few times on activist stuff (I got into sex worker advocacy after my up-close-and-personal. They can't do it themselves, they go to prison when they try. Well, before today. Go Katrina Pacey! Go Canadian legal system!)

sergiotapia2• 13 years ago

There is a middle ground. It's not "either I work using my brain, or I whore myself out." Many women are waitresses, shopping mall sweepers, store attendants, cashiers, you name it.

kingkawn• 13 years ago

And all of those jobs require your brain too, its just that the byproducts of that use are not considered valuable. Lots of innovation in waitressing if you ask them how they do it rather than what it results in.

undoware6• 13 years ago

Fun experiment for you. Go out and get a facial tattoo. Now try to get work. That's still easier than finding honest work when you're transsexual. Don't believe me? I can think of an even more decisive experiment...

mistercow3• 13 years ago

I believe the point is that due to ridiculous amounts of prejudice, customer-facing jobs are difficult for a trans person to find.

marquis4• 13 years ago

We can't ignore the (sad and backwards) social stigma that trans-women face, where a waitressing job, or any public-facing job, is difficult to apply and be accepted for.

notastartup2• 13 years ago

That is quite tragic that the law had to force you to make difficult decision, especially considering the fact that trans folks are very much marginalized in society because of the ignorance that still floats around unfortunately about gender.

rmc6• 13 years ago

Thanks for getting involved in the HN community. It can be a little cishet male sometimes. Don't let the bastards grind you down.

pmelendez• 13 years ago

Immigrant in Canada here. While it sucks what it happened to your roommate I have to say that the immigration process is one of the clearest legislations between the options I had. It is slow but it gives you options.

Kudos for your job. I worked with a trans woman (a fellow developer too) before and she was one of the sweetest people at the office. She even found a great guy as a boyfriend. Considering all, I think Canada is a friendly environment for transexuals, you have to see how they are treated in Latinamerica.

Sssnake4• 13 years ago

Because just being her roommate, under the previous legislation, would have classified as 'living off the avails'

No it wouldn't. You have to actually be doing something for her. Children, spouses, roommates, etc are all safe. You were still at risk though, because your apartment would qualify as a bowdy house according to the law.

timo9• 13 years ago

Contrary to popular belief, (most of) the US, (most of) Africa, (most of) Asia and Russia are among the only places where prostitution is in fact illegal.

https://en.wikipedia.org/wiki/Prostitution_by_country

spkb4uthk• 13 years ago

what's popular belief? US, Africa, Asia, and Russia seem to make up like 75+% of the world.

dobbsbob2• 13 years ago

This will help suck the profits of org crime should legislation ever happen (won't with the current hawkish regime). Currently it is illegal to run a bawdy house unless it's a false front massage parlour so gangs run micro brothels which are condos stacked full of foreign girls. They tend to jack each other's brothels since it's a cash biz and police aren't called due to the condo operation being illegal. When sex workers can run their own and not worry about getting robbed these guys will have to get a job

gjmulhol• 13 years ago

Canada, where you can now find the world's most polite sex workers...in addition to the most polite everything else.

RyanMcGreal3• 13 years ago

The Court's reasoning was that since prostitution itself is legal, it is unconstitutional to prevent prostitutes from taking reasonable measures to manage their business, protect their safety and so on. My prediction is that the federal government will react not by amending the law to eliminate the unconstitutional restrictions but rather making prostitution itself illegal.

loganu• 13 years ago

I'm not so sure... I think there might be a genuine interest in actually helping/ protecting these women. Why wouldn't prostitution have been made criminal before? (instead of the de facto approach of arresting pimps and johns for soliciting and living off the avails?)

frenchy• 13 years ago

The current government is conservative, so probably not. They've shown a distinct lack of interest in practical solutions and instead have stuck very solidly with their "ideals".

pervycreeper4• 13 years ago

"It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes," McLachlin wrote. >"The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks."

One of the things I've noticed reading newspaper articles and websites regarding legal rulings in Canada (the full depth of my research, admittedly), is that the reasoning seems to be governed by the judges' personal opinions of what would be fair ("we must protect the prostitutes from harm"), whereas American rulings seem to rely more upon the interpretation of texts such as their constitution. Is this an accurate characterization? If so is this a result of a differently structured legal system, or just a "cultural" difference?

erikj54• 13 years ago

If so is this a result of a differently structured legal system, or just a "cultural" difference?

From an uneducated opinion on the piece this seems to be the difference between Common Law vs Statutory Law. In Common Law the precedence of cases is used, where opinions and subjectivity are perhaps more inclined to change a decision, in contrast; Statutory Law has more to do with the enforcement of prescriptive laws written down by the legislature. While both Canada and the U.S are based on common law, we seem to lean further to the common side then our neighbours to the south.

dublinben• 13 years ago

Common law and statutory law are not two different systems. You're thinking of common law and civil law, which are significantly different.

danielharan• 13 years ago

There are cultural differences, however this comes down to how to interpret our charter.

The US constitution protects the right to free speech, so I assume the SCOTUS can strike down laws that restrict it.

mikeklaas• 13 years ago

No, that is not an accurate reading of the situation.

Constitutionality in Canada is governed by the judges' interpretation of the Charter of Rights and Freedoms, which is part of the constitution. In this case, the judges determined that the legislation was not simply 'unfair', but infringed on a group of people's fundamental rights.

rbobby5• 13 years ago

Canada has a pretty good Charter of Rights. Section 7 involves security of the person. That's the rock the existing laws sunk on. Roughly speaking the laws made a legal activity more risky for no reasonable purpose (which is why Section 1, reasonable limits, couldn't save the law).

The Canadian SC is very good at their jobs. They definitely do not make their decisions based on their "personal opinions of what would be fair". Rather, their decisions are based on their measured, professional understanding of the charter, the law and existing jurisprudence, and the effects their decision may have on the administration of justice. Thankfully they are very experienced jurists with great respect for the rule of law and jurisprudence.

pervycreeper4• 13 years ago

I'd like to see the intermediate steps between "security of the person" and legalizing pimping.

It would also be mildly alarming to learn that the SC consists of "very experienced jurists with great respect for the rule of law and jurisprudence" only "for the most part".

rimbo789• 13 years ago

Part of it is different schools of legal thought. In America there is a significant legal tradition of "textualists' who try to read US constitutional documents literally and in a narrow focus.

Canada, for various cultural and political reasons both pre and post Charter of Rights and Freedoms has a much stronger tradition of 'living tree' constitutionalism that sees constitutional documents as able to grow and change as the values of a society change over time.

mturmon• 13 years ago

The linked article is pretty thin regarding the legal rationale for the ruling. A US paper giving a one page summary might be similarly superficial.

Yet, I see your point. Along the lines you suggest, US Constitutional jurisprudence has many secondary doctrines that have been established over the years. One illustration (relevant if this were an American case) is the notion of "strict scrutiny" (http://en.wikipedia.org/wiki/Strict_scrutiny). Basically, this is a more refined interpretation of the Constitution in cases where individual rights are being traded off against legislative power.

I wonder if someone could link to a more refined interpretation of this case?

cperciva• 13 years ago

Canada's constitution includes some very broad provisions -- most notably, section 7, which provides for the "right to life, liberty and security of the person" and has been applied to issues ranging from the abortion (Morgentaler) to private medical insurance (Chaoulli) to the operation of supervised drug injection sites (Insite) to the prohibition of penal sentences for absolute liability offences (Re B.C. Motor Vehicle Act) -- but they are limited by section 1 which states that these rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

A very large number constitutional cases end up hinging on the words "demonstrably justified", which is why it looks like judges are making decisions based on what seems "fair": They are, quite literally, called upon to decide whether there are good reasons for laws or if the laws are arbitrary, broader than necessary to achieve their purpose, et cetera. As a result, it's necessary to look at external evidence to determine the constitutionality of laws, and a law which is constitutional today might be unconstitutional tomorrow.

Or as one lawyer I know put it: If Canada's constitution were a normal law, it would be ruled unconstitutional on the grounds of vagueness.

auctiontheory• 13 years ago

Ironic that we sitting in the West learn about this from an Arab news service, i.e. from the most conservative and anti-woman region in the world.

mmphosis• 13 years ago

Al Jazeera has bureaus around the world. Pretty much all of the American content originates from the U.S. Many of the news people at Al Jazeera were formerly from CBS, ABC and CBC.

trapped• 13 years ago

Why is this on HN? I feel very frustrated and sorry for HN. Lately there has been influx of Reddit users who are posting similar content and encouraging such links by upvoting it.

PG - If you are reading this.Can we please do something to keep sanity of HN. Save HN.

cobolorum• 13 years ago

I just wish that their ruling was a little more broad and far reaching in its effect. For those like myself who believe in self-ownership this is a no brainer, and it would seem that people are recognizing the basics of self-ownership in this case, but refuse to do so in almost every other facet of modern Western law.

Canada's top court has overturned all restrictions on prostitution

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