Prostitution injunction trades injustice for injustice

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No reasonable person could claim that the street nuisance problem created by prostitutes and their customers in Vancouver’ West End is acceptable or should be allowed to continue. West End residents’ rights to free movement and privacy have been abused by a serious public nuisance problem, and something should be done to restore and protect those rights. Therefore, it is with some reluctance that the B.C. civil Liberties Association has opposed, and will now appeal, the recent Supreme Court injunction against street prostitution in the West End.

A careful look at the terms of the Supreme Court injunction reveal that the rights of West End residents (women, in particular), prostitutes and their customers, and other citizens, are almost certain to be abused as the injunction is enforced, or if it becomes a paradigm for responding to other real or perceived public nuisances. It is just not an acceptable trade-off to replace one set of injustices for another, especially when there are avenues that could be taken to respond to the problem without this cost.

The wording of the injunction is far too vague to be acceptable in a liberal democracy. It will subject a wide range of individuals to potential interference and arrest who are not involved in street prostitution activities. Moreover, because of the vagueness of the injunction, it will be very difficult for prostitutes and many other West End residents to know where they stand with respect to the law.

The offensive parts of the injunction prohibit those who have knowledge of it from:

  1. engaging in any public conduct or activity apparently for the purposes of male or female prostitution…
  2. publicly appearing to offer themselves directly or indirectly for the purposes of male or female prostitution by words or without words, or by actions, gestures, loitering, or otherwise.

Individuals who are found to be in violation or the injunction may be subject to contempt of court proceedings and are liable to imprisonment for two years.

The first thing to notice is that it is not just prostitutes who may be targeted by the injunction, but anyone who “appears” to be engaged in any public conduct “directly or indirectly” for the purpose of prostitution. This certainly will include the activity of prostitutes. But almost any innocent conduct might “appear” to be related “indirectly” to the activity of prostitution under certain circumstances. Accordingly, police are given broad discretion that would permit interference–whether by mistake, by over-zealousness–with almost any activity that West End residents engage in, including hitch-hiking or waiting on street corners for rides. It could even include such innocent behaviour as going for an evening walk in the West End in a short skirt and tight sweater. As well, the injunction will likely subject prostitutes who live in the West End, but who ply their trade elsewhere, to harassment and arrest as they travel to and from work, or as they conduct their shopping and other personal business near their residences.

Second, a violation of the injunction does not require any evidence that a person was involved in a public nuisance. In fact, no evidence was presented during the court hearing that linked any of the individuals named in the injunction to any particular act of public nuisance. The effect is that prostitutes have become public nuisances by virtue of their membership in a particular group. This is a precedent that no one should be eager to see, namely, that an individual engaged in lawful behaviour can be subject to arrest and imprisonment as a public nuisance, essentially by virtue of his or her membership in a group, and not because he or she has been shown to be involved in any particular nuisance or other harmful behaviour.

Third, prostitution per se is not illegal in Canada; only pressing and persistent solicitation in conjunction with prostitution is prohibited by the Criminal Code. Arguably, the injunction amends the Criminal Code by extending the range of prohibited conduct beyond pressing and persistent behaviour (what is clearly a nuisance) to “any public conduct apparently for the purposes of male or female prostitution”. If this is the case, the exclusive federal jurisdiction to amend the Criminal Codehas been impinged upon, and the injunction would, therefore, be constitutionally invalid. In sidestepping the federal legislative process, the opportunities for careful examination of legislative proposals and public input have been lost. The value of this process is that it is usually weeds out flagrant potential abuses of rights, such as those noted above, before they are enacted in legislation.

Of course, it is certain to be argued that it is not the intention of the court to have the injunction applied as we have described here, and that it will be enforced so that no one’s rights are unduly compromised. What are the chances of this? Consider the old section 175(l)e of the Criminal Code, or “Vag-C” as it was commonly known, which gave police the power to arrest a “prostitute or nightwalker who… failed to give a good account of herself” in a public place. Under Vag-C, women were arrested who were unable to convince police that they were not offering the sale of sexual services. It is almost certain that the injunction will be enforced in a similarly offensive way. Vag-C was repealed in 1972 amid a storm of protest and considerable evidence from women’s and civil liberties groups that the law was resulting in serious abuses of women’s rights.

Unfortunately, we have been given little assurance from the police that the injunction will be enforced judiciously. In the Saturday, July 7 edition of The Sun, a member of the Vancouver Police Department was reported as saying that the injunction would be served on anyone who appeared to be engaging in soliciting sexual services “anywhere in Vancouver”, including anyone who was “soliciting for companionship” and not necessarily for money. Imagine the psychological and financial cost to innocent individuals who may be forced to raise a legal defence and deal with the loss of reputation that would inevitably follow being publicly accused of breaking this injunction.

So where does all this leave the residents of the West End? In our view, there is no reason to suppose that an injunction would not be effective which realistically defined and prohibited the sorts of public nuisances that have been encountered in the West End, and which was worded clearly enough to avoid the abuses that plagued Vag-C. The B.C. Civil Liberties Association has made it very clear from the beginning that it would not oppose such an action. Failing this, in spite of various protests by public officials, there is no hard evidence that a rigorous enforcement of the existing public order provisions of the Criminal Code would not be similarly effective.