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The legality of prostitution in Canada

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Civil and commercial litigation

On December 20th, 2013, the Supreme Court rendered a judgment by which it found that certain sections of the Criminal Code of Canada related to prostitution, were invalid, as being contrary to the Canadian Charter of Rights and Freedoms.

Prostitution Related Activities Declared Unlawful in the Criminal Code 

It should first be noted that prostitution, that is, the exchange of money for sexual services, is not illegal in Canada. Rather, the approach taken in the Criminal Code has been to render illegal certain other activities that are or may be principally related to prostitution. Therefore, in the case before the Supreme Court that was decided on December 20, 2013, the Supreme Court examined certain infractions: the keeping of a common bawdy-house; living on the avails of prostitution of another person; as well as communicating, in a public place, for the purposes of engaging in prostitution or obtaining the sexual services of a prostitute.

Supreme Court Ruled Criminal Code In Violation of Article 7

The Supreme Court decided that the sections of the Criminal Code at issue, violated article 7 of the Canadian Charter of Rights and Freedoms. Article 7, protects, in particular, the life, liberty and security of the person. However, to avoid any immediate consequences, the Supreme Court suspended the declaration of invalidity of these sections for a period of 1 year.

Therefore, until December 20th, 2014, the sections of the Criminal Code remain in force. Without amendments, however, after December 20th, 2014, those sections will no longer be valid and will no longer carry any punishment for persons who would, in theory, violate those sections of the Criminal Code.

It will be both an interesting legal question and political question, to see what amendments the current federal government will put forward to replace the soon-to-be invalid laws.

There is certain to be some sort of effect on the laws to be drafted by the fact that by October, 2015, approximately 10 months after the date set in the Supreme Court judgment, there will be a federal election. A political calculus is bound to enter into the proposals and the eventual law that will be enacted to replace the invalidated sections.

Me Franco Tamburro, lawyer
ALEPIN GAUTHIER AVOCATS INC.

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