Despite the CBC’s attention-grabbing headline in its article, “Prostitution laws struck down by Ont. court“, absolutely nothing has changed — yet — with Canada’s anti-prostitution laws. Here’s a quick refresher on why the Ontario Superior Court of Justice’s decision in R. v. Bedford hasn’t yet resulted in a free-for-all in our nation’s red light districts.
Firstly, as is now the norm in any court challenge to the constitutionality of a law, the Court’s declaration of invalidity has been suspended for 30 days to allow the government time to work through certain “kinks”, such as the possibility that “unlicensed brothels may be operated in a way that may not be in the public interest”. (As an aside, we note the Court took the surprising position that delaying the declaration of invalidity for a longer period would somehow contribute to the danger faced by prostitutes, even though it cited the fact that the laws in question “are rarely enforced” as a reason not to strike down the law without leaving time to enact something in its place.)
Second, and let’s be absolutely clear here, despite the name of the Court this decision does not have binding effect throughout Canada. The Ontario Superior Court of Justice is the court of first instance in this matter. If someone else was charged with a similar offence elsewhere in Ontario, a judge of the same level court might (but need not necessarily) apply the same result for reasons of consistency. But there’s nothing forcing trial judges in other provinces from reaching the exact opposite conclusion on the same issue.
Even if this decision were upheld on appeal to the Ontario Court of Appeal, the decision would at best be “persuasive” to judges in other provinces. It would take a decision of the Supreme Court of Canada — something that isn’t likely to happen for at least several years — or corresponding judgments in the courts of appeal in other provinces, for the effect of the “striking down” of this legislation to be felt outside of Ontario. That’s right, even though prostitutes in BC are subject to the same Criminal Code of Canada as prostitutes in Ontario, the interpretation of these provisions can diverge from province to province.
And that’s assuming the 30 day stay of the decision isn’t extended by further court order.