TORONTO — Sex-trade workers fighting to take key anti-prostitution laws off the books say the government’s arguments trivialize the life-and-death nature of their claims.
The federal and Ontario governments are appealing an Ontario Superior Court ruling last year that struck down laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade.
Justice Susan Himel said the laws were contributing to the danger faced by prostitutes and violate the Canadian Charter of Rights and Freedoms by forcing prostitutes to choose between their liberty and their security.
In arguments filed with the Court of Appeal for Ontario, the federal government said Himel erred in assuming that Parliament has an obligation to “minimize hindrances and maximize safety” for people in such activities.
“It is the practice of prostitution in any venue, exacerbated by efforts to avoid the law that is the source of the risk of harm to prostitutes,” government lawyer Michael Morris wrote. “Prostitution is not a fundamental life choice; it is an economic activity that carries high risks for all those who engage in it.”
The appeal is scheduled to be heard over several days in June and in the recently filed documents from the lawyer for the sex-trade workers, they say that argument from the government “embraces a ’blaming the victim’ perspective.”
“To suggest that this claim is built upon the notion that there is an entitlement to engage in prostitution free from state interference trivializes the serious nature of the rights-claim being advanced,” lawyer Alan Young wrote. “This is a case in which state action, a legislative enactment, plays a critical role in the perpetuation of violence by imposing a blanket prohibition on conduct which can serve to enhance the safety of sex workers.”
The ruling dealt with adult prostitution offences and does not affect Criminal Code provisions involving people under 18.
Young and the sex-trade workers argue that the law against keeping a common bawdy house endangers sex-trade workers because the threat of violence is significantly reduced when they can ply their trade indoors. The law against living on the avails prevents sex-trade workers from hiring security personnel, they say. And, they argue, the communicating provision forces sex-trade workers to make hasty decisions without properly screening potential customers while working on the street.
The federal government is also asking the court that if it upholds the ruling striking down the laws, an 18-month stay be imposed on it so Parliament can have time to fill the regulatory void that would arise
In his arguments, Young stressed that he is not questioning Parliament’s authority to regulate or prohibit the sex trade, rather the case is about questioning the “rationality of the means chosen by Parliament to achieve its stated objectives.
“In the pursuit of its legitimate objectives, Parliament has created a legislative regime that, on its face, is irrational and inconsistent, and which in its effects contributes to an increased risk of significant physical harm for those who attempt to comply with its contradictory demands.”
Prostitution itself is not illegal, but the laws criminalize much of the activities at the core of the practice.
While the Superior Court decision struck down the application of the law in Ontario, it remains to be seen if courts in other provinces will follow the Ontario decision. It is more likely they will await the outcome of this case, which could be taken all the way to the Supreme Court of Canada.
That court has recently decided to hear Ottawa’s appeal of a ruling by British Columbia’s highest court that gave a former sex-trade worker in that province the green light to dispute prostitution laws. The federal government argued she shouldn’t have the right to challenge the laws because she’s currently not facing any charges.
Two of the women involved in the Ontario case — including dominatrix Terri-Jean Bedford, who was charged in 1994 with keeping a common bawdy house — are not active as sex-trade workers, but would like to return to it if it was not illegal to work indoors. The third woman works indoors but fears criminal prosecution.