Amici Curiae: The Prostitution Challenge at the OCA and Trayvon Martin

Prostitution Challenge Passes Muster At ONCA

After months of deliberation, the Ontario Court of Appeal (“ONCA”) issued a landmark ruling  (Canada (Attorney General) v Bedford, 2012 ONCA 186) on Monday regarding prostitution laws in Canada. While prostitution itself was not illegal in Canada, up until Monday, several provisions regarding prostitution were. This decision recognizes the rights of sex workers in allowing them the ability to take precautions in efforts to protect themselves.

The Ontario Court of Appeal agreed with the application judge in that the prohibition against common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down. It held that the prohibition on living on the avails of prostitution violates section 7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between sex workers and others. The court read in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation. The majority of the court ultimately did not agree that the ban on communicating in public for the purpose of prostitution is unconstitutional. Two members of the bench dissented in part, stating that the application judge was correct in determining that the communication provision was unconstitutional.

The declaration of invalidity striking down common bawdy-houses has been suspended for twelve months, which will give Parliament an opportunity to redraft a Charter-compliant provision. In the interim, however, police enforcement activities remain the same. This draws on the tension the court faces in providing constitutional remedies. In one respect, the court is unelected and ought not “write laws.” On the other hand, in deferring to the elected body of the legislature, the court both places time pressures on the legislature while at the same time allowing this invalid provision to continue to operate.

Given the unanimity of the court in the bawdy house provision, Allan Young, counsel for the respondents,stated his optimism  about ONCA’s decision:

“The Ontario Court of Appeal recognized that simply because they are engaged in a morally controversial activity, does not mean that the Constitution stops at their doorstep.”

The decision will likely be appealed to the Supreme Court.

What’s In a Hoodie?

On February 26, 2012, Trayvon Martin was shot and killed by a George Zimmerman, a neighbourhood watch coordinator in a gated community in Sanford, Florida. Trayvor was unarmed at the time, and was reportedly walking from the convenience store, where he had just purchased a pack of Skittles, back to the home of his father’s girlfriend in the neighbourhood. Zimmerman had reported the 17-year-old African American to police for suspicious behaviour, and was following him as he reportedly attempted to run away. The police record indicates that the dispatcher informed Zimmerman that he did not have to continue following him. When police arrived at the scene, Trayvor was lying dead with a gunshot to the chest. Zimmerman has submitted that the shooting occurred only after a physical altercation he had with Trayvor, and he seeks justification under Florida’s Stand-your-ground law.

Zimmerman has not yet been charged with any crimes, as he has claimed the shooting was in self-defence; one witness has corroborated Zimmerman’s claims that Martin was, at one point, on top of him beating him. In the absence of evidence contrary to Zimmerman’s claims, it does not appear that he will be charged with Trayvor’s death. Trayvor did not have a criminal record, and, notwithstanding Zimmerman’s testimony, any cause for concern about his presence in the community could be attributed to his race and the hoodie he was wearing at the time.

The incident has caused protests in cities across North America, and has reinvigorated issues of systemic discrimination and racial profiling. The New Black Panther party has offered a $10,000 reward for the capture of Zimmerman, and he has received a number of death threats.

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