Law Times

Law TiMes • May 28, 2012 is — are piling up. (Please forgive the pun. It' Liberals back off nanny state stance W COMMENT e all know On- tario is broke and the bills — legislative, that hard to fi nd any levity these days at Queen' s so couldn't resist.) Th e bills in this case, of s Park that I course, involve legislative pro- posals. Th ere were 96 of them last time I looked, but right now only one really matters be- fore the legislature rises on June 7 for the summer: the budget. First, though, a review of those 96 bills suggests the Liberals have backed off their "nanny state" stance that marked most of their nine years in power as un- derlined by the ill-advised pit bull ban. Now they're in damage control. Talking of which, one of those 96 note here that the original Dog Owners' Liability Act amendment in 2005 was a bad piece of legislation to begin with based on shaky science that has done nothing to change the incidence of dog bites while managing to tear pets from their loving owners and see them execut- ed on account of their breed. (Full disclosure: I had a pit bull adopt- bills is bill 16, a bipartisan amendment to strike down the ban. It' s important to ed from the pound for 13 years.) In another example, Bill 68 undoes a piece of legislative stupidity that bans den- tists and others covered by the Regulated Health Professions Act from treating their Ian Harvey Queen's Park spouses and then having sex with them. Under the act, do- ing so counts as sexual abuse, which means dentists have a choice: send their spouses to someone else or stop having sex with their loved ones. Neither option is reasonable or just. Other proposals are decid- Ont., family of four who perished because a blocked vent from their gas fi replace caused gas to seep into their home while they slept. Similarly, bill 54 would require retro- fi tting of retirement homes with sprin- klers, another measure we sorely need. It' marking underground utilities. Th ere's edly unglamorous but sensible. Th ey include bill 8, the Ontario underground infrastructure notifi cation system act, that will enact a one-call system for something like $100 billion in infra- structure underground and some 12,000 strikes during excavation. We need a one-call system to alleviate this. More controversial are bills 13 and the Ontario Association of Fire Chiefs to protect the most vulnerable among us. It wouldn't take eff ect until 2018 in order to give institutions time to comply. Th ere are other bills, too, that would s a case presented and pushed for by cover everything from condominium owners' to cellphone customers' rights. All of this brings us to bill 55, the strong action for Ontario act, that's set 14, both of which are under consider- ation at the standing committee on so- cial policy. Th e former is the accepting schools act while the latter is the anti- bullying act. If combined, they' fi ne bullying and create a higher stan- dard for school boards around it and support for student victims. Th ere are also some perennial issues d rede- back up for discussion. I hope the better among them will fi nally pass. Bill 20 is the Hawkins Gignac act that stalled and then died in the last session. It would amend the Fire Protection and Prevention Act to require carbon monoxide detectors in homes with a fuel-burning appliance. One has to applaud Ernie Hardeman, the Oxford MPP who has continued to press for this bill in memory of the Woodstock, for a fi nal vote this week. Th e budget bill hinges on an NDP-Liberal alliance to carry it and not force another election. Last week, there were rumblings that NDP Leader Andrea Horwath and her colleagues were pushing to get some last-minute concessions under the threat of pulling their support. How- ever, the bill will carry, I suspect, be- cause the NDP, which loves to claim the higher moral ground, can't appear to be acting disingenuously. Forcing an elec- tion now, of course, would bring all of those pending legislative proposals to a grinding halt. But it makes you realize how so many LT marriages fail over the bills. Ian Harvey has been a journalist for 34 years writing about a diverse range of is- sues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. PAGE 7 u Letter TO THE EDITOR LETTERS.indd 1 SKYPE WORKS WELL IN COURT In the April 23 article, "Family law case to feature testimony via Skype, that it wasn't the first time the province's 3/1/12 4:39 PM " it is observed courts have allowed evidence-in-chief and cross-examinations by Skype. In fact, in the trial of B. v. B. in the Superior Court of Justice in Stratford, Ont., the parties agreed and Justice Roland Haines allowed an expert witness (a notary prac- tising in Holland) to give his evidence-in- chief, cross-examination, and re-exami- nation by Skype. Court was convened after the tech- nological arrangements were made and tested. The trial judge could see the wit- ness. The witness could see the examin- ing lawyer (there were three parties and counsel involved) and the other counsel could view the witness all on screen. Apart from some of the technological challenges, the evidence of the witness by Skype worked remarkably well. The witness was not put to the trouble of travelling from Holland to attend court in Canada and the parties were saved the expense of bringing the witness here. All of this was achieved without, in any way, compromising justice thanks to the court' ing new technology. s willingness to be flexible by adopt- Paul Parlee, Parlee Law Offices Professional Corp. Stratford, Ont. v. Bedford. The original challenge launched in the Ontario T he federal government has recently announced its intention to appeal the ruling of the Ontario Court of Appeal in the case of Canada (Attorney General) Courts must be activists in rationalizing prostitution law u SPEAKER'S CORNER Superior Court of Justice was to three sections of the Criminal Code of Canada dealing with prostitution and the common bawdy house. The provisions in question were s. 210(1) dealing with common bawdy houses; s. 212(1)(j) dealing with living off the avails; and s. 21(1)(c) dealing with communicating for the purpose of prostitution. The applicants were challeng- ing the provisions under ss. 7 and 2(b) of the Charter of Rights and Freedoms. The hope is that Parliament will eventually put in their counsel. There's definitely a sense of relief that Ontario's highest court acknowledged that sex workers place a more cohesive and less contradictory regime. The original applicants in the case (who are now respondents) are Terri-Jean Bedford, a well-known sex trade worker and dominatrix; Valerie Scott, who has worked in the sex trade since the early 1980s and who' now an activist for the rights of sex workers; and Amy Lebovitch, who has been a sex trade worker since 1997. After reviewing an extensive application record and s hearing days of argument, Justice Susan Himel of the Ontario Superior Court of Justice struck down all three sections of the Criminal Code in their entirety in a ruling on Sept. 28, 2010. The federal government subsequently appealed to the Ontario Court of Appeal. In the more recent ruling by the Ontario Court of Appeal on March 26, 2012, the court allowed the appeal of Himel' court of justices David Doherty, Marc Rosenberg, and Kathryn Feldman held that the provisions related to common bawdy houses and living off the avails should be struck down as breaching s. 7 of the Charter. The appeal court further held that the communicating provision didn't violate the Charter. While the court unfortunately didn't uphold Himel's ruling in its entirety, the decision was certainly welcome news in large part for the respondents and s decision in part. The majority of the encouraging recognition by the court that certain sec- tions of the Criminal Code serve to isolate, endanger, and exploit women who choose to practise what is in Canada a legal activity: the selling of sex. But by leav- ing the communication provision intact, the court failed to appreciate how this section contributes to potential violence against sex trade workers. Since the launch of the application in 2007, there shouldn't feel like second-class citizens and that they should have all of the health and safety protections that other Canadians benefit from. The decision in Bedford was, for the most part, an serves to undermine it by preventing them from prop- erly screening potential clientele and forcing people to practise in dangerous areas. Based on the application record presented by the indoor locations and the provision of body- guards were beneficial to ensuring safety, it seems contrary, as outlined by MacPherson in his dissent, that the majority did not in turn accept that the communication provision has been a feeling that the parties opposing the appli- cation to strike the provisions were missing the point. Regardless of any societal nuisance caused by bawdy houses and street solicitation, the laws were operating to put sex workers in danger by not allowing them to protect themselves through proper screening, practise in indoor locations, and have others supply services such as being a driver or bodyguard. This decision was undoubtedly an acknowledg- ment that sex workers can more adequately protect themselves while practising indoors and by availing themselves of others who can assist when their safety is at risk. When the matter proceeds to the Supreme Court of Canada, the respondents are hopeful that the court will agree with Justice James MacPherson who, in dissent, said of the communication provision: "By displacing prostitutes into isolated areas and discour- aging them from working together, the communicat- ing provision increases the risks faced by prostitutes. My colleagues disregard this displacement and assign no weight to its effects." While the Court of Appeal did acknowledge that www.lawtimesnews.com applicants in the Superior Court of Justice (which included affidavits from 21 witnesses, sex trade work- ers, and scholars who have conducted extensive research over the years as well as a huge body of legis- lative facts, analysis, and recommendations presented in numerous government reports and studies), the communicating provision undoubtedly contributes to countless beatings, rapes, and even murders of sex trade workers across Canada. This section effectively pushes sex trade workers into run down areas less likely to be frequented by law enforcement and lessens the likelihood that they'll be able to properly screen potential johns prior to entering their vehicles or accompanying them to remote areas. This provision could arguably contribute the most to the dangers associated with the profession and serves to isolate the most marginalized sex trade workers: those who work on the streets. Striking down the legislation will certainly not cure all of the problems associated with the sex trade. But as it stands now, we've seen progress in addressing the very serious issues that result from the sometimes- arbitrary nature of the law. The courts must be activists in forcing Parliament to rationalize the law in this area in order that it doesn't work at cross purposes to its objective and put an end to the delusion that irrational criminal sanction will ever curtail the sex trade. LT Stacey Nichols is a Toronto criminal lawyer and partner at Neuberger Rose LLP. She can be reached at stacey@nrlawyers.com.

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