Jill Mahoney
Alberta Bureau; With a report from Rod Mickleburgh in Vancouver.

Alberta law on child prostitution struck down

'Draconian' measure lacks safeguards, judge says

CALGARY — In a decision that will be scrutinized across the country, a judge struck down Alberta's landmark child-prostitution law yesterday, saying it was "Draconian" in its lack of protection for individual rights.

The legislation, thought to be the first of its kind in the world, allowed police and social workers to apprehend suspected sex-trade workers who are under 18 years old and lock them in safe houses for up to three days without search warrants or court orders. The goal was to provide counselling and a haven from predatory pimps.

Yesterday, Provincial Court Judge Karen Jordan ruled that the 18-month-old law violates the Constitution because of an alarming lack of "procedural safeguards," such as a requirement that a judge approve the seizure and confinement of each child.

She noted that the legislation gave young prostitutes, who are defined in the law as victims of sexual abuse, less protection than accused criminals.

"…We should acknowledge and protect their rights even before we do so for an accused in a criminal proceeding. That is the moral standard to apply. The legal standard is equally clear," she wrote.

In court yesterday, Judge Jordan rejected a request by government lawyer Margaret Unsworth to stay the ruling so that the legislature, which is not scheduled to sit until at least the fall, could consider and possibly amend the law. The judge noted that the government has the option of convening an emergency sitting.

Children's Services Minister Iris Evans said after the decision that officials need time to comb through the 24-page ruling.

This is necessary, she said, in order to determine whether the province will appeal the decision or amend the law.

"Clearly this is a mountain we're going to have to climb," Ms. Evans said, adding that the government is solidly committed to the principles behind the legislation.

Ms. Evans said the decision is "disappointing" because it means police can no longer immediately seize young prostitutes. "It's a black day because the protection that we've had isn't there," she said.

The Protection of Children Involved in Prostitution Act had been celebrated as an effective tool by police officers and groups that work with child prostitutes.

Earlier this month, the British Columbia government passed a similar law, and other provinces are considering enacting their own legislation.

The "secure care" legislation in British Columbia goes even further than the controversial law in Alberta, giving authorities the right to scoop juveniles off the street and detain them for 72 hours, not merely for prostitution but for drug abuse as well.

After a review, the youngsters could be forced into secure treatment facilities for up to 30 days.

Jerry Adams, executive director of Urban Native Youth in Vancouver, welcomed the Alberta court's decision. He said his group is planning a similar challenge in B.C. "Aboriginal youth are the most at-risk population and the most likely to be affected by this act."

The Alberta constitutional-court challenge was spearheaded by two Calgary lawyers, Bina Border and Harry Van Harten, acting on behalf of two 17-year-old girls who were seized under the law last September at a home police consider a "trick pad," where children are locked up to have sex with several men.

One of the girls has since got her life in order, and the other has disappeared. The lawyers say they fear she has gone to work as a prostitute in another province.

Ms. Border said yesterday's decision, which will be considered "persuasive" for other courts in the province and which resulted in the government's vow to stop apprehending children under the law, was a huge victory for all children's rights.

"It's very important … the judge was very clear in her ruling that the violations are huge," Ms. Border said.

Aside from stepping on individual rights and locking up victims, Ms. Border said the law served to further drive child prostitution underground. As well, young girls who were apprehended reported that their pimps beat them once they were released and made them work harder to recoup their lost earnings.

Judge Jordan struck down the law, which she acknowledged was well-intentioned, because it violates three sections of the Charter of Rights.

Children cannot answer to the allegations against them, they are apprehended in warrantless searches that are not subject to judicial review and they are seized and detained without the ability to have the action judicially reviewed.

She said that the province's Child Welfare Act, which also allows children to be apprehended but is not considered an effective tool to combat child prostitution, requires those involved in each seizure to appear before a court.

"Are young prostitutes not worthy of the same safeguards as children who are conduct disordered, drug addicted or perhaps mentally ill?"

Judge Jordan said that not allowing children to answer to the allegations made against them by appearing before a judge, with a lawyer, was a "Draconian attenuation of procedural safeguards."

She also took issue with the lack of provisions to determine the law's success, such as follow-up measures to gauge whether children are staying off the streets or getting help with their drug and alcohol addictions.

"The government of Alberta has not made a commitment to provide us with answers, even though the liberty of children is being curtailed," she wrote.

Judge Jordan said that the law would be acceptable if it were amended to require that children be brought to court immediately, so that officials could explain why they were apprehended.

Since the law was enacted on Feb. 1, 1999, there have been 390 apprehensions involving 183 suspected prostitutes ranging in age from 12 to 17. Seventy-two have been detained more than once. Most were girls. So far, the law has cost $5.2 million.