Kevin Van Paassen/The Globe and Mail

Hide your kids, for soon our daughters will be street-walkers and our sons shall be johns and pimps.

Yes, the Ontario Court of Appeals has opened the door to wide-spread pay-by-the-hour sexytimes in a ruling passed down yesterday. The court ruled that two of the primary laws governing sex work in Canada were unconstitutional. The court has now set a precedent for all Ontario courts, and it will be passed on to the supreme court for a federal decision sometime next year.

The two laws spanked into submission by the five naughty judges were the two concerning operating a bawdy house and living off the avails of prostitution. The judges, however, decided to tease a little and keep their hands firmly wrapped around the provision that criminalizes communicating for the purposes of prostitution.

It’s a simple enough intellectual quandry - sex workers can work indoors and make money, they just can’t talk about it.

Previously, it had been illegal to take part in “a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency.” (i.e. my livingroom was illegal.) It was also against the law to make use of income made through sex work. Take that, children.

Okay, so sex workers are now allowed to work indoors and actually feed themselves without fear of police reprisal. 

But what about the other thing?

The court wrote this;

[The application judge] held that the provision is neither arbitrary, because it is directed toward this goal, nor overbroad, because a narrower prohibition would not be effective. However, the application judge concluded that the impact of the communicating provision is grossly disproportionate to the legislative objective because it deprives street prostitutes of the opportunity to screen customers, which she found to be an “essential tool” to enhance their safety.

We disagree with this analysis. As we will explain, the application judge erred by simultaneously under-emphasizing the importance of the legislative objective and over-emphasizing the impact of the communicating provision on the respondents’ security of the person. We conclude that the communicating provision does not violate the principles of fundamental justice, and must be upheld.

You hear that?

That was the sucking logic vacuum. 

The assumption by these judges is that sex workers need not talk to their clients before hopping into bed/their car/whatever - instead, there need only be a wink and a nod. 

You may be asking; "why?” It’s quite evident, actually. While sex work is not in and of itself illegal, it is considered a dirty public nuisance and therefore virtually all manifestations of it are banned. As the judge explains,

The application judge held that the purpose of the communicating provision is to target the social nuisance associated with street prostitution, including noise, street congestion, and interference with innocent bystanders. 

Yes indeed, sex workers can’t talk about sex work because they make too much noise and block traffic. 

(As a side note - how is that we can ban a profession for these reasons, but we can’t ban those annoying little motorcycles? Is there no justice?)

The judges in this case basically crafted a scale dedicated to deciding if the communication provision is more harmful to the safety of sex workers, or to the sensibilities of folks who live in high-traffic areas.

…the application judge found that the communicating provision endangers prostitutes by denying them the “essential tool” of customer screening. In so holding, the application judge made no attempt to quantify the harm street prostitutes face by virtue of the communicating law, as distinct from the harm that they face due to other social and economic factors. She also failed to point to evidence in the record that would support her finding that face-to-face communication with a prospective customer is essential to enhancing prostitutes’ safety. On our reading of the record, such a finding was not available.

Read: we have not presented with evidence that not screening their customers is dangerous for sex workers, therefore it mustn’t be, considering that they’re already all poor junkies. Those scores of murdered and missing sex workers would not have been benefited in the slightest by actually having a conversation with their killer before deciding to get in his car.

Yes, judges, yes.

But wait, there’s more,

There was anecdotal evidence from prostitutes that they often felt rushed in their negotiations with potential customers, and would quickly get into the customers’ cars to avoid detection by the police. To the extent that the application judge relied on that evidence, informed by her own common sense, to find that screening customers is essential to enhancing the safety of street prostitutes, we think her conclusion reaches well beyond the limits of the evidence. While it is fair to say that a street prostitute might be able to avoid a “bad date” by negotiating details such as payment, services to be performed, and condom use up front, it is equally likely that the customer could pass muster at an early stage, only to turn violent once the transaction is underway. It is also possible that the prostitute may proceed even in the face of perceived danger, either because her judgment is impaired by drugs or alcohol, or because she is so desperate for money that she feels compelled to take the risk.

So absurd is this, that I may barely muster the incredulous snark in order to mock it.

Suffice it to say that, at present, communication for the purposes of sex work exists. It exists in muted tones and rushed whispers. 

Take, for example, this delightful exchange pulled from the archives of the Courts of Nova Scotia.

Sergeant Moser drove his vehicle onto Maynard Street. Just before Cornwallis Street he saw the Applicant. She waved and Moser pulled his vehicle over just ahead of her. Ms. [P.] walked over to the car and got inside. The following conversation ensued:

[P.] “Are you a cop?”

Moser: “No.”

[P.] “Can you prove it?”

At this time, Ms. [P] opened the front of her pants and stated: “Touch me here.”

Sergeant Moser placed his right hand down to the Applicant’s pubic hair and pulled his hand back. The following conversation ensued:

[P.] “Go further.”

Moser: “Well, I don’t have anything on my hands.”

This is what happens when fear of police reprisal trumps self-preservation. These workers are more worried about cops than they are about bad johns. The need to stay out of jail surpasses causes them to take risks and forgo screening. This is the danger. The court should need no more evidence than the words of sex workers themselves.

And this public nuisance objection is utter bullshit. Poverty is dangerous, not sex. You want to clean up the streets and make all the icky hookers disappear? Fight poverty. Those who work in the sex trade willfully rarely do so on the streets. Street-level sex work is about survival, not pleasure, and criminalizing someone’s survival is inexcusable.