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A disastrously bad law

The astronomical rise in the murder of prostitutes in the 20 years since the 'communicating' law was passed is enough by itself to demand that Parliament or the courts remedy a terrible social evil that Ottawa created

Peter McKnight
Vancouver Sun

Saturday, November 05, 2005

What if the criminal law, far from protecting vulnerable people, actually created an atmosphere that contributed to their murders?

Would not such a law be both immoral and unconstitutional? And what if the law was still in force, and still enforced, nearly 20 years after its enactment?

These are not rhetorical questions because such a law exists: In December 1985, Parliament enacted the "communicating law," which prohibited communicating in a public place for the purposes of prostitution.

Since then, more than 100 prostitutes have been murdered in B.C. alone, and the law is directly implicated in those murders.

Needless to say, Parliament should have repealed this law years ago. However, in 1990, the Supreme Court of Canada upheld the law, sending Parliament and the police the message that the law is just fine as it is.

But it isn't. We now have evidence that was unavailable to the court in 1990, evidence that would almost certainly result in the law being struck down as an unjustified infringement of at least two Charter rights.

In the 1990 case -- Reference re ss. 193 and 195.1(1)(c) of the Criminal Code -- the two female members of the court at the time, Bertha Wilson and Claire L'Heureux-Dube, held that the law infringes both the right to freedom of expression (section 2 of the Charter) and the right to life, liberty and security of the person (s. 7), and they would have declared the law unconstitutional.

The majority of the court agreed that the law infringes s. 2, but held that the infringement is justified. Further, the majority concluded that s. 7 is not violated, and thereby upheld the law.

Since all of the judges agreed that the law compromises freedom of expression, and since there's no reason to conclude any court would decide otherwise today, it's reasonable to accept that the law does infringe a s. 2 right. The dispute concerns whether the infringement can be justified, and I will address this issue after discussing s. 7, which requires a bit more work.

Section 7 reads: Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In the Reference case, the court focused primarily on whether the law infringes the right to liberty because those convicted of prostitution offences could go to jail.

However, we now have evidence that the law compromises the other two rights in s. 7: prostitutes' rights to security of the person and to life. Much research has been conducted on the effects of the law, with some of the most important work coming from Simon Fraser University criminologist John Lowman.

In 1996, Lowman analyzed police statistics and reports from The Vancouver Sun and The Province to determine how many prostitutes had been murdered in B.C. in the previous half-century. What he found was shocking: There were no murders between 1940 and 1974, and then one murder in 1975 and 12 more between 1978 and 1984, for an average of slightly more than one a year between 1975 and 1984.

After the communicating law was enacted in 1985, things ran out of control: Four B.C. prostitutes were murdered in 1985, followed by 49 more between 1986 and 1995, which means prostitute murders rose to five a year from one. And these statistics don't include all of the Downtown Eastside's missing women.

This isn't proof that the communicating law is to blame, but there's reason to believe it created an environment that made the murders possible. The Supreme Court had determined that the predecessor law, which prohibited soliciting for the purposes of prostitution, only outlawed behaviour that was pressing or persistent.

Since few prostitutes are pressing or persistent, the law made it difficult for police to charge prostitutes. The communicating law, on the other hand, made it much easier for police to arrest prostitutes, and hence many felt the need to do whatever possible to avoid the prying eyes and ears of the police and the public.

Consequently, prostitutes rarely reported "bad dates" -- street slang for being assaulted on the job -- to the police. And instead of working in brightly lit places, where they and their clients could be seen, and instead of working in groups, where they could protect each other, prostitutes began working alone in dark, desolate places.

They therefore had to divest themselves not only of police protection, but of even the minimal self-protections they previously enjoyed, and they were forced to place themselves at the mercy of those who would do them harm.

To my mind, this alone is sufficient reason for Parliament to repeal this law, whether it's constitutional or not. But the astronomical rise in murders also appears to be sufficient evidence to conclude that the communicating law deprives prostitutes' of their right to security of the person.

Having found a violation of the right to security of the person, it remains to be determined whether the infringement is in accord with the principles of fundamental justice. This is a complex area of law, but Vancouver's Pivot Legal Society makes a strong argument concerning one straightforward principle of fundamental justice: The law must not be arbitrary. And the Supreme Court has stated that the deprivation of a s. 7 right will be considered arbitrary if the law that deprives a right does little to enhance the state's interest.

The purpose of, or state's interest in, the communicating law is to protect society from the nuisance of street prostitution. But the law does no such thing: At around the same time the court was releasing its judgment in the Reference case, the Department of Justice released statistics showing that, while street prostitution declined immediately after enactment of the communicating law, it quickly rebounded.

In fact, there were soon more prostitutes on the street than before the law was promulgated, particularly in major centres like Vancouver and Toronto, which have always had the most problems with prostitution.

The law has therefore done nothing to advance the state's interest, and hence the deprivation of prostitutes' right to security of the person is arbitrary and not in accord with the principles of fundamental justice.

Having found violations of both s. 2 and s. 7, we must now consider whether the law can be "saved" by s. 1 -- that is, whether the infringement of the rights is justified. To be justified, the objective of the law must be pressing and substantial, and I will grant that reducing the nuisance of street prostitution is a pressing and substantial goal.

Having satisfied the first criterion, we must consider a "proportionality" test that involves three elements: The means the law uses to achieve its objective must be rationally connected to that objective; the law must minimally impair the Charter rights in question, and the salutary effects of the law must outweigh the seriousness of infringing the Charter rights.

Let's leave aside the second element (minimal impairment) because it's abundantly clear that the communicating law violates the other two elements. Although it might seem reasonable to assume that outlawing communicating in public for the purposes of prostitution is rationally connected to the goal of reducing the nuisance of prostitution, we now know that the law has had no effect at all. Hence the means the law uses to achieve its objective have absolutely no connection to that objective, rational or otherwise.

And since the law has produced no benefits, it has no salutary effects, while the infringement of prostitutes' right to security of the person is serious indeed. Hence the law fails the proportionality test, cannot be justified under s. 1 of the Charter and is unconstitutional.

It's unfortunate that we even need to be making this argument nearly 20 years into the reign of this disastrously bad law. That the law places already vulnerable people in even greater danger should be reason enough for police to cease enforcing it and for Parliament to repeal it.

But despite all the unfair accusations of judicial activism, the fact is, Parliament often needs a push from the courts to act on contentious matters. And it might well take a court decision for Ottawa to do what it should have done years ago and get rid of this law.

It is to be hoped that won't be necessary, since a House of Commons committee has criss-crossed the country to gather evidence for a report on prostitution law reform, and the report should be released soon. And Mayor Larry Campbell has recently mused about creating a red light district in Vancouver.

But if these developments don't lead to repeal -- if the immorality of the law isn't sufficient reason for Parliament to scrap it -- then it will be once again up to the courts to remedy the social evil Ottawa has created.

pmcknight@png.canwest.com

 The Vancouver Sun 2005

Courtesy of
The Vancouver Sun

 

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Updated: August 21, 2016