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Lauren Casey, a former prostitute and doctoral student. (Deddeda Stemler/Deddeda Stemler/The Globe and Mail)
Lauren Casey, a former prostitute and doctoral student. (Deddeda Stemler/Deddeda Stemler/The Globe and Mail)

Justice

Court challenge takes on sex work prohibitions Add to ...

As police across the country search for scores of missing and murdered women, three prostitutes are launching a carefully prepared challenge that could force changes in how Canada polices the world's oldest profession.

Lawyers for women intend to prove, in a case that opens Tuesday, that prostitution is also the world's most dangerous profession and that ill-conceived and repressive laws exacerbate the perils.

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"The laws target women and don't allow women to protect themselves," said one of the litigants, Terri-Jean Bedford, who has worked as a Toronto street prostitute and a brothel madam. "Nothing can be worse than the laws we have now. I found that working indoors is much safer than working outdoors, especially after midnight, when the freaks come out."

The law flies in the face of social reality, said Lauren Casey, a former prostitute in Victoria, B.C. "When consenting adults are doing what consulting adults like to do - and there is no harm to it - then we should reduce the harm that is associated with a very dangerous form of work," she said in an interview.



We have created this bizarre situation where prostitution is not directly prohibited, but the state tries to prohibit all the incidental transactions Alan Young, Osgoode Hall law professor


While sporadic attempts have been made over the years to chip away at aspects of prostitution law, the challenge is the first in two decades to aim for a broad sweep of its provisions. The women want the courts to strike down prohibitions against living off the avails of prostitution, communicating with potential clients and setting up brothels.

To succeed, the applicants must show that the laws amount to a "grossly disproportionate" infringement of the Charter right to life, liberty and security of the person.

With the Charter challenge almost certain to reach the Supreme Court of Canada, both sides have had a strong incentive to assemble a vast body of evidence, including dozens of witnesses.

"As it currently stands, the law is arbitrary and irrational," said Alan Young, a law professor at York University's Osgoode Hall law school, who is spearheading the Charter challenge.

"We have created this bizarre situation where prostitution is not directly prohibited, but the state tries to prohibit all the incidental transactions."

Lawyers for the federal and Ontario Crown are focusing their strategy on proving the inherent dangers of prostitution, whether it is conducted in a car, an open field or a luxurious boudoir. They also contend that prostitution is inherently degrading and unhealthy, and should not be encouraged through a slack legal regime.

"The Charter does not mandate Parliament to design a regime allowing the applicants to earn money by engaging in prostitution with fewer hindrances," federal prosecutor Michael Morris said in a legal brief.

Mr. Morris warned that decriminalization could cause women to view prostitution as "a career choice," make Canada a haven for sex tourism, and divide residential communities that become red-light districts.

But Prof. Young scoffed at the idea that prostitution is as dangerous indoors is it is outdoors: "It's common sense," he said. "You can lock the door. You have a baseball bat under your bed. You have a panic button. You have a closed circuit camera."

Prohibiting communication renders prostitutes unable to "screen" potential clients, Prof. Young said. "Living off the avails means that you can't hire security, and the bawdy house provision means that you can't move behind closed doors."

To decide the case, Ontario Superior Court Justice Susan Himel must assess whether the law is proportionate to its purpose, or whether it forces prostitutes into unsafe situations where they can become easy prey for deviants and serial killers.

Ms. Casey said that prostitutes constantly compromise their safety to avoid running afoul of the law. She worked recently with a prostitutes' outreach team that encountered a frightened streetwalker who had leapt from a moving vehicle to escape a "creepy" john.

"We said that we had to call the police to report it," Ms. Casey said. "The woman was saying: 'If you are going to report it, I'm out of here.'"

Simon Fraser University criminologist John Lowman said that, according to public opinion polls and research, a majority of Canadians believe that prostitution between consenting adults should be legal.

"So do the Bloc, Liberals and NDP, according to the 2006 parliamentary report of the Subcommittee on Solicitation Laws," he said. "Clearly, Canadians are ready to end what one judge has characterized as the 'Alice in Wonderland' state of Canadian prostitution law."

Indeed, there may be no greater illustration of this looking-glass world than the fact that several cities - including Toronto, Victoria, Windsor, Calgary and Edmonton - now charge fees to licence body-rub establishments despite the general understanding that many sell sexual services.

"You cannot take money for an activity that you know is illegal, whether it is enforced or not," Prof. Young said. "Yet, we have this strange situation where the biggest pimps in the country right now are municipal governments. It's just another irrationality of the law."

In Vancouver, a group of women's organizations called the Abolition Coalition, yesterday launched a campaign to oppose the Ontario Superior Court case.

"If you view prostitution as violence against women, as we do, you understand you can't make violence safer," said Laura Holland of the Aboriginal Women's Action Network.

Instead of providing safety measures for women, further decriminalization would give johns, brothel owners and pimps the constitutional right to exploit women said Janine Benedet, a law professor at the University of British Columbia.

While the coalition supports tougher laws and stronger enforcement for pimps, johns and brothel owners, it supports ending prosecution of prostitutes charged with solicitation. With a report from Rebecca Lindell in Vancouver.

 

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