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Ontario court extends stay allowing enforcement of prostitution laws

The Ontario Court of Appeal [official website] on Thursday ruled [opinion, PDF] that several prostitution-related laws struck down by the Ontario Superior Court of Justice (OSCJ) [official website] would remain in effect until April 29, pending an appeal. Justice Marc Rosenberg issued an extension of the stay requested by lawyers for the federal and Ontario governments to preserve the provisions that were invalidated by the lower court while the appeal process continues. The OSCJ ruled [JURIST report] in September that provisions § 210, § 212 and § 213 of the Canadian Criminal Code [texts], which prohibit the keeping of a "common bawdy house," engaging in communications for the purpose of soliciting sex and living "on the avails" of the sex trade, were a violation of the Canadian Charter of Rights and Freedoms [text]. The government argued that the judgment should be stayed until the court could conduct a full review of the decision, while the party challenging the laws argued that the stay would "perpetuate the law's contribution to violence against a vulnerable population." Rosenberg applied the RJR-MacDonald Inc. v. Canada test for granting a stay pending appeal, which requires the court to balance convenience and public interest considerations of the issue. He concluded that it is in the public interest that the judgment be stayed for a relatively short period to permit appellate review of the decision.

Although prostitution is legal in Canada, virtually all of the acts ancillary to exchanging sex for money are not. In 2007, the Sex Professionals of Canada [advocacy website] initiated an application with the OSCJ [JURIST report] challenging the three provisions overturned in September's ruling on the grounds that they are inconsistent with the Charter. The challenge came on the heels of the trial of Robert Pickton [CBC case backgrounder], who was accused of murdering 26 women [indictment text], mostly prostitutes, in the Vancouver area in the 1990s. Pickton was convicted of six counts of murder [Globe and Mail report] in late 2007.

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