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Major Ontario judicial decision strikes down Bill C-36 - BREAKING!!!

J.A. Prufrock

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Feb 27, 2018
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I got a lot of shit back during election season for saying this, but I’m going to say it again: if you’re on this site, you’re presumably a hobbyist, in which case if you vote conservative you are voting against your own interests. I know politics are a team sport now and we automatically have to hate the other side, but Peter Mackay is very possibly the next conservative candidate and happens to be one of the main players in drafting C-36. We have an opportunity now. Singh has publicly stated that he supports decriminalization, Trudeau has characteristically flip-flopped and been both for and against decriminalization, depending upon when he was asked and who was asking. A Trudeau-Singh coalition like we have now is probably the best case scenario for getting decriminalization. I know us lefties are a bunch of snowflakes, but for once, it might actually be better to think with your dick...
X one billion.
 

krazyplayer

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Jun 9, 2004
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Sadly the purchase of sexual services and even private communication for such purposes is not addressed in this case and still entirely illegal.
 

mandrill

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Aug 23, 2001
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Sadly the purchase of sexual services and even private communication for such purposes is not addressed in this case and still entirely illegal.

It wasn't before the court - only the agency-related provisions.

Judges are micro in their approach to decision-making and don't over reach if something isn't specifically put before them.

I'm guessing that the judge's language and reasoning are more than adequate to stretch to cover purchasing though.
 

drlove

Ph.D. in Pussyology
Oct 14, 2001
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The doctor is in

It wasn't before the court - only the agency-related provisions.

Judges are micro in their approach to decision-making and don't over reach if something isn't specifically put before them.

I'm guessing that the judge's language and reasoning are more than adequate to stretch to cover purchasing though.
When you say the judge’s language and reasoning are more than adequate to cover purchasing, are you saying that due to this decision, LE will be reluctant to enforce the law as it pertains to the purchase of sex?
 

mandrill

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When you say the judge’s language and reasoning are more than adequate to cover purchasing, are you saying that due to this decision, LE will be reluctant to enforce the law as it pertains to the purchase of sex?
That's my take. I am waiting until the full text of the judge's reasons become available on line and then I will post the link.
 

corrie fan

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Nov 13, 2014
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mandrill

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A London man has been charged with procurement for sexual services after he placed an ad for a job which was found to be for escort services. I guess the police in London are not troubled by the recent court decision.
Something I find interesting is that the judge said that parliament could have written the law to only apply to cases of coercion but they chose not to.

https://lfpress.com/news/local-news/london-man-46-charged-in-connection-with-job-ads-seeking-escorts
yes, it's the "overbreadth" argument.

Laws that impinge on Constitutional Rights have to be narrowly drafted to meet the test under section 2 of the Charter that they nevertheless are necessary and desirable in a free society.

If they are drafted more broadly than strictly necessary to deal with the evil they purport to remedy, then they are unconstitutional under the overbreadth doctrine.

Sounds like the London Police Dept needs a good, follow up, second ass-kicking.
 

Allegra Escorts

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Feb 27, 2014
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I've read snippets of the decision, and it's fucking fantastic. My lawyer has read the whole thing and she was shocked at how bold the decision was, and likened it to the original Himel decision from Bedford, in regards to how well-reasoned and well-written it was. She's actually concerned that the Attorney General might not appeal it, because a failure on appeal would create a precedent across the province, which is something they might not want to do. Without an appeal, she thinks that it may not impact enforcement in any meaningful way (as much as it has been enforced so far).

One interesting bit of nuance involves the judge's use of language like "non-exploitative" and "non-coercive" third-party business arrangements, in regards to the material benefits clause. One could argue that some agency-like situations might not be immune from prosecution, depending on the conduct of the owners.

An interesting snippet, in regards to collectives like Allegra or OIC:

[208]Parliament could potentially have focused the effect of the law on third parties who are in coercive, exploitative relationships with sex workers. However, the provisions are drafted so broadly that they expose sex workers who desire to work cooperatively with other sex workers to the risk of criminal liability, and employees in noncoercive, non-exploitative relationships with sex workers to criminal liability. Sex workers who lack the desire, sophistication, and means to work independently are prevented from exploring the possibility of relationships with third-party managers on terms acceptable to the sex worker which might enhance the health and safety of the sex worker. The provisions are overly broad.

(Emphasis mine)

I don't want to overvalue nor undervalue this particular victory. The long-term implications are as yet unclear. But it's a victory nonetheless, and should be celebrated as such.
 

mandrill

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Aug 23, 2001
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It will still impact enforcement because soon many, if not most in the sex industry will be aware that there's "some kind of judge thing out there that helps us", if not more specific knowledge. And that means they retain a lawyer instead of doing what the "nice cop" wants us to do. And the lawyer will - or at least damn well SHOULD - find the decision and argue it.

Even if it is not legally binding, the decision exists. Other judge's can read it and follow in its path. And if they balk at so doing, then it created a path for the losing defence attorney to take that case up to the Court of Appeal with a genuine "conflicting decision."
 

mandrill

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Aug 23, 2001
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Extracts from the judgment kindly provided by Allegra Escorts.

 
Questions. Is there some link to show the Crown has decided not to appeal the London case, so for sure?

What happens now? The case is stayed.... but if no appeal will it be stayed forever or until the question is raised in another province and goes to the Supreme Court?.

So if not appealed, does the case stand as a precedent that other Ontario courts have to follow? If so, I assume C36 is no longer the law in Ontario? Or at least no prosecutor would likely charge anyone (consenting adults). Does that mean street prostitution is also legal in Ontario?

What effect might this have on any potential C36 charges in Montreal? It seems the merb board has firm rules that for massage parlors, nothing can be reported on anything sexual or you are banned for at least one month. I have never understood what is drastically different in Montreal vs. Toronto since it seems both city police have had statements not to go after private consenting adults without another good reason. Maybe the massage law is more strict in Montreal although, as we saw in the forget city near Toronto, the massage parlor case court ruled can not make by-laws more restrictive than Criminal law in a case where the city didn't allow nudity and was reversed by courts.
 
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mandrill

Well-known member
Aug 23, 2001
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Questions. Is there some link to show the Crown has decided not to appeal the London case, so for sure?

What happens now? The case is stayed.... but if no appeal will it be stayed forever or until the question is raised in another province and goes to the Supreme Court?.

So if not appealed, does the case stand as a precedent that other Ontario courts have to follow? If so, I assume C36 is no longer the law in Ontario? Or at least no prosecutor would likely charge anyone (consenting adults). Does that mean street prostitution is also legal in Ontario?

What effect might this have on any potential C36 charges in Montreal? It seems the merb board has firm rules that for massage parlors, nothing can be reported on anything sexual or you are banned for at least one month. I have never understood what is drastically different in Montreal vs. Toronto since it seems both city police have had statements not to go after private consenting adults without another good reason. Maybe the massage law is more strict in Montreal although, as we saw in the forget city near Toronto, the massage parlor case court ruled can not make by-laws more restrictive than Criminal law in a case where the city didn't allow nudity and was reversed by courts.
If there's no appeal, there's no stay. So the decision is operative and in force.

Here's the complication. A first tier decision doesn't bind any other court. At most, its effect is merely "persuasive" on judges at that same bottom tier. Full stare decisis only applies to decisions of higher courts. OTOH, the decision is well-reasoned and stands alone and it appears that the Crown wants no part of laying any further charges in the absence of evidence of coercion, or forced trafficking or underage girls.

So the decision is in force and persuasive and uncontradicted by any other authority, but not legally binding on any other judge. Total grey area.

And it has no effect on out of province cases, except again "persuasive".
 
Oagre - very good analysis - thanks
 
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Jenesis

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If there's no appeal, there's no stay. So the decision is operative and in force.

Here's the complication. A first tier decision doesn't bind any other court. At most, its effect is merely "persuasive" on judges at that same bottom tier. Full stare decisis only applies to decisions of higher courts. OTOH, the decision is well-reasoned and stands alone and it appears that the Crown wants no part of laying any further charges in the absence of evidence of coercion, or forced trafficking or underage girls.

So the decision is in force and persuasive and uncontradicted by any other authority, but not legally binding on any other judge. Total grey area.

And it has no effect on out of province cases, except again "persuasive".
So this means that there will be no challenage in a higher court that could see the actual laws changed?
 

mandrill

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So this means that there will be no challenage in a higher court that could see the actual laws changed?
Not unless the sex industry brings its own challenge. And there is no sign of this happening.
 
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