Beyond Decriminalization: Sex-work, Human Rights and a New ...

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformIn a more recent case involving licensing and regulation of body rub massage parlours, Pimenova v.Brampton (City), 13 the city sought to place a number of restrictions on these establishments, includinglimiting the number of parlours to eight, despite the fact that 16 such licenses already existed. TheCity of Brampton took the position that it was within its municipal jurisdiction to enact theseby-laws. The Ontario Superior Court ruled that the section of the by-law regulating the number offacilities was in City’s jurisdiction. However, the sections of the by-law regulating dress and physicalcontact in the parlours were deemed to be unconstitutional because they represented an attempt toregulate morality, thereby intruding into the federal power over crime. Two other sections dealingwith limitations on the transfer of licenses and on hours of operation were found to be discriminatoryand unfair, and struck down.Human rights legislationProtections against discriminatory legislation created by the provinces include the CanadianCharter of Rights and Freedoms 14 and provincial Human Rights Codes. In the context of prostitution,it could be argued that overly stringent and unreasonable limitations on advertising by sex workers arein violation of their s. 2(b) right to freedom of expression under the Charter. 15ParamountcyThe doctrine of paramountcy holds that otherwise valid provincial legislation will be renderedinoperative where it is found to be inconsistent with a valid federal law. Where there is no inconsistency,both laws operate concurrently. Paramountcy may therefore be a relevant consideration even ifthe criminal laws surrounding prostitution are not completely repealed, and certain aspects of prostitutionremain under criminal jurisdiction.However, it should be cautioned that the determination of validity and paramountcy of legislationis inconsistent across provinces, and depends on the specific wording of the legislation in question.For example, in the context of provincial prohibitions against possession of the drug LSD withinAlberta and B.C.’s respective Health Acts, the relevant Courts of Appeal came to opposite conclusionsregarding the validity of the legislation. 16 In Alberta, provincial prohibition was deemed to be validbecause it related to public health, a provincial jurisdiction. In B.C., similar legislation was held to beinvalid, because it relates to a matter of criminal law, thus falling under federal jurisdiction. In a 1987case pertaining to strip clubs, an attempt by New Brunswick’s Liquor Licensing Board to impose aprohibition on nude entertainment was deemed intra vires the province as a legitimate regulation oflocal industry. 17 And while the provincial legislation dealt with an activity that falls under theCriminal Code, there was no express conflict or intrusion, so paramountcy was not invoked.National standardsThe overall ability of the provinces to regulate those aspects of prostitution that fall under theirs. 92 enumerated power – although limited in some respects – means that it would be difficult, if notimpossible, to ensure a national set of standards and objectives regarding prostitution. For example,Sectuib 3 of New Zealand’s Act, sets out its purpose:13 Pimenova v. Brampton (City) [2004] O.J. No. 2450.14 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.),1982, c. 11 [hereinafter referred to as the Charter].15 Ibid. at s.2(b).16 Regina v. Snyder and Fletcher (1967) 61 W.W.R. 112 and 576 (Alta. C.A.) compared to Regina v. Simpson, Mack and Lewis (1969)1 D.L.R. (3rd) 597, 1196913 C.C.C. 101 (B.C.C.A.).17 Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59.227