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Possible judicial stay on prostitution decision

In late September Justice Susan Himel, of the Superior Court of Justice, found unconstitutional and struck down three of Canada’s prostitution laws:  keeping a common bawdy house, communicating for the purposes of prostitution, and living off the avails of prostitution.  I took great interest in this decision as I was involved, while a third-year law student (2006-07), in the early stages of this challenge, deemed Safe Haven, brought by Osgoode’s Professor Alan Young.

Justice Himel’s decision would be binding across the Province of Ontario and effectively prevent the Crown from prosecuting such charges in the Ontario Court of Justice until such a time as a higher court (starting with the Ontario Court of Appeal) makes another decision or another Superior Court Justice makes a different decision which would provide an alternative to Judges of the Ontario Court of Justice (this is unlikely to happen as the matter is already before the Ontario Court of Appeal).

In the decision, Her Honour granted a “stay” of her ruling coming into effect.  This essentially means that the laws would remain legal until the stay is lifted.  The stay is set to be lifted on November 27, 2010, this Saturday.

Enter Justice Marc Rosenberg of the Court of Appeal.

The Crown (represented in this case by the federal government), as expected, has appealed Justice Himel’s decision.  In doing so, the Ontario Court of Appeal was asked to extend the stay until such a time as a panel of that court makes a decision on the laws.  The decision on the stay was left to Justice Rosenberg who this week explained that he will try and have a decision by Saturday; however, if he doesn’t, the stay would be extended until a decision is made.

If Justice Rosenberg does not issue a stay, then the specific prostitution laws mentioned above would become invalid and the Crown would be unable to prosecute (and the police should not charge) those engaging in such acts.  This will not make prostitution itself a legal act as it just applies to the three specific offences mentioned above.  Should Justice Rosenberg issue the stay then it will be status quo in Ontario until the Ontario Court of Appeal rules on the issue (which could take a year or more) and then, most likely, the Supreme Court weighs in on the matter.

Links & Updates

Here is a link to Justice Himel’s decision in Bedford v. Canada.

Here is a link to Justice Rosenberg’s decision extending the stay of the effects of this decision.

December 2: Justice Rosenberg, in an 86 paragraph decision, has extended the stay until April 29, 2011, less than five months away.  He was clear that the court is available to hear the appeal in April.  This would be an extremely short timeframe for an appeal.  I will attempt to make a new blog entry over the next week or so to analyze and explain the ruling which is linkes above this paragraph.  The disposition reads as follows:

Accordingly, an order will go staying paras. 1 to 3 of the judgment of Himel J.  This stay will be in effect until April 29, 2011 or until the appeal is argued, whichever is the earlier, unless varied by a further order of this court or a judge of this court.  The parties may wish to reconsider the timetable to which they had previously agreed and which would have delayed hearing of this appeal to sometime in late June, 2011.  I note that counsel for the responding parties was prepared to argue the appeal as soon as possible.  This court is available to hear this appeal at the end of April, before the expiration of this order.  This is not a case for costs.

November 27:  According to this Star article, John Kromkanp, senior legal office for the OCA, stated that the deadline will not be met, but decision will be “sooner rather than later”.  Alan Young was quoted as follows:

“It’s a heavy weight on a single judge,” lawyer Alan Young, who argued on behalf of sex trade workers challenging the law, said on Friday.

“No judge wants to be responsible for chaos, and that’s what’s been put on the table (by the Crown).”

November 22:  The following was posted on the web site of the Ontario Court of Appeal:

Notice: Bedford et al. v. Attorney General of Canada
Court of Appeal file C52799, Motion M39380

On Monday, November 22, 2010, Justice Rosenberg heard an application brought by counsel for the Attorney General of Canada seeking to stay the order of Madam Justice Himel pending the hearing of the appeal in this matter. His decision is under reserve.

However, at the end of the hearing on November 22, Justice Rosenberg made the following endorsement and interim order:

“Himel J.’s order staying her judgment expires on November 27, 2010. An order will go further staying the judgment until I have delivered my decision on this application.”

As a result, the judgment of Madam Justice Himel continues to be stayed until such time as Justice Rosenberg releases his decision on whether the stay should continue pending the hearing of the appeal.

The court will provide at least one day’s notice on the court’s website prior to the release of the decision of Justice Rosenberg.

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