Lawyers for three Ontario sex-trade workers argued before the Supreme Court of Canada June 13 that Canada’s prostitution laws violate constitutional rights to freedom of thought, belief, opinion and expression, and the right to life, liberty and security of the person.
The nine justices of the high court must now decide whether those infringements relating to the laws against keeping a bawdyhouse and living off the avails of prostitution are reasonably justified in a free and democratic society.
The case involved about three dozen lawyers for the women, as well as groups supporting or opposing them, says law student Marcus McCann.
“It was lawyers deciding the fate of sex workers,” McCann says.
Lawyer Katrina Pacey, of Vancouver’s Pivot Legal Society, has represented sex-trade workers in an ongoing BC case and was part of the June 13 hearing. She tells Xtra that people were feeling “tense and anxious” going into the hearing but says it was “a wonderful day.”
Pacey says the judges grappled with issues of health and safety as they peppered government and sex workers’ lawyers with questions.
“They asked really good questions that made me believe they really thought this through and were concerned about sex-trade workers’ safety,” Pacey says. “Our team was very focused. We’d been preparing months and years for this day.”
The hearing was the culmination of several lower-court appearances for Ontario sex-trade workers Valerie Scott, Terri-Jean Bedford and Amy Lebovitch.
Their lawyers argued that all previous judges agreed that the overbroad use of the two laws plays a significant role in the perpetuation of violence against sex-trade workers.
“The means chosen by Parliament to achieve its objective with respect to the sale of sex is constitutionally unsound because the legal regime contributes to the risk of harm faced by women engaged in lawful work,” their lawyers argued in court documents.
The “fundamental flaw” in the government’s arguments is that selling sex is not illegal, the women’s lawyers pointed out.
The federal government announced last April that it would appeal an earlier Ontario Court of Appeal decision that struck down two prostitution laws as unconstitutional. The appeal court had been considering a 2010 decision by Ontario Superior Court Justice Susan Himel that struck down three Criminal Code provisions related to sex work.
While the appeal court agreed with Himel on two provisions, striking down the bawdyhouse law as it relates to sex work and modifying a law that makes it illegal to live off the avails of sex work, three of the five judges chose to uphold a law that prohibits communication for the purposes of prostitution.
In asking the Supreme Court of Canada to reconsider the appeal court’s decision to strike the two laws, the federal government argued that “criminalizing all bawdy-houses helps prevent harms to the community and protects public health and safety by allowing police to locate prostitutes who may be abused, trafficked or under-age.”
“Prohibiting persons from living on the avails of prostitution helps to deter prostitution and protect prostitutes by cutting off the incentives to those who would otherwise seek to profit from it,” the government argued in court documents.
“By criminalizing all of this conduct, the provisions also meet the overall objective of deterring prostitution and its commercialization,” the government argued.
The government said prostitution is dangerous not only for those engaged in it, but also for the communities in which it takes place.
The government said it is not the laws that create the danger; rather, the danger is inherent in prostitution.
The women called the government assertion an opinion not based on fact.
“Whether or not one believes that prostitution is morally undesirable or inherently dangerous, it is ethically unsound for the state to deter and control the activity by exposing its participants to an increased risk of significant harm,” the women’s submissions said.
“The moral value or worth of one’s choices simply does not factor into the analysis of whether state action operates as a deprivation of one’s right to security of the person,” they said.
The government argued that prostitution brings danger from pimps, psychological problems, addiction and other issues. “While each prohibition targets distinct conduct, they constitute an interconnected whole, demonstrating Parliament’s intent is to deter the business of prostitution.”
“Expert, experiential and police evidence also demonstrates that the lifestyle of prostitutes often involves little sleep, poor nutrition, unprotected sex and abusive relationships. These factors can lead to health problems including injury, infection, including HIV and other sexually transmitted diseases, and an increased risk of cervical cancer,” the government argued.
Government lawyers said enforcing the laws deters prostitution and minimizes its harms. “Criminal charges and convictions send the message that this activity is not acceptable.”
The women countered that the high court had ruled in Vancouver’s 2011 Insite safe-injection-site case that “the principles of fundamental justice are violated” when the state’s application of laws increases risks to people engaged in illegal and dangerous activities.
“Surely the same level of constitutional responsibility should lie with respect to protecting those persons engaged in a legal activity,” the women’s lawyers argued.
“There is no principled reason why this statement should not apply with equal force when the law creates a risk to physical security by preventing access to rudimentary safety measures.”
The government argued the prostitution laws give police an entry point to help sex workers leave pimps, obtain medical care, or experience a reprieve from life as a prostitute, if not a permanent exit.
“Many can and do make the choice to exit prostitution and that choice is due, in part, to the deterrent effect of the impugned prohibitions,” the government said.
It argued the criminal laws exist to protect people and communities and are a justifiable infringement of the constitutional rights the Ontario women claim are violated.
On the bawdyhouse law, the government argued the evidence is inconclusive as to whether or not prostitution is safer indoors or out.
It argued the women had not shown that the prohibition against living on the avails is a necessary link in the chain of causation of harms suffered by prostitutes. It said the risks would remain even if prostitutes could hire receptionists, drivers and bodyguards.
“Pimps can begin their relationship with prostitutes by offering them the same sort of protection that one would expect from a bodyguard, boyfriend or driver, but these relationships often become exploitative, abusive and violent due to the vested economic stake that person has in the prostitution of others,” the government said.
“Deference must be given to Parliament’s choices,” the government document continued.
The government asked that if the high court determines that any of the laws should be struck down, there be a suspension of any declaration of their being taken off the books to provide Parliament with an opportunity “to address these complex social issues.”
“Imagine the horror of the Harper government designing a new prostitution law,” McCann says.
McCann says the judges were “very engaged” with the arguments, with plenty of questions for the provincial and federal governments’ attorneys general.
The justices have reserved decision. It is not known when they will rule.
McCann says it’s hard to tell which way the case might go.
In deciding to hear the case, Supreme Court Justice Thomas Cromwell ruled it was in the public interest as its issues transcended the applicants’ own interests. He said a decision in the case could also prevent large numbers of similar challenges that would take up court time.
Cromwell said that allowing the case to move forward would assist “the most marginalized members of society” and “promote the economical use of scarce judicial resources.”