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Ontario court extends stay upholding anti-prostitution laws until court ruling

A five-judge panel for the Ontario Court of Appeal [official website] Friday extended stay of a lower court decision striking down laws banning prostitution-related activities, leaving the activities illegal pending ruling of the court. The panel extended the stay [Toronto Star report], which was already extended [JURIST report] last December, just before the proceedings in the Court of Appeal ended Friday, keeping it in effect until a ruling that is expected to come sometime in the next six months. Justice David Doherty said the stay will remain in effect until the court says otherwise before the judges retired to discuss their decision. Although prostitution is legal in Canada, virtually all of the acts ancillary to exchanging sex for money are not. Last September, the Ontario Superior Court of Justice (OSCJ) [official website] ruled [JURIST report] 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 legality of prostitution in Canada is in a state of flux pending legal challenges to the constitutionality of anti-prostitution laws. In March, the Supreme Court of Canada [official website] agreed to review a B.C. Court of Appeal [official website] decision allowing a challenge to the country's anti-prostitution laws. In arguing to extend the stay in this case last December, the government said a stay would be necessary 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." Justice Marc 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. 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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