Up to 95 per cent of prostitutes are vulnerable women who would gladly leave their tawdry profession if they could, an Ontario prosecutor told a landmark prostitution appeal Tuesday.
"It is not a voluntary choice, but a highly constrained choice," Crown counsel Christine Bartlett-Hughes told a five-judge Ontario Court of Appeal panel that will decide the fate of the prostitution laws.
"We recognize that there are certain individuals that choose this activity," Ms. Bartlett-Hughes added. "But nevertheless, Parliament is entitled to legislate to protect those who are most vulnerable."
Ms. Bartlett-Hughes conceded that the laws can make it more difficult for prostitutes to protect themselves from violent customers. However, she told the judges there is no proof that decriminalizing prostitution and moving prostitutes off the streets into brothels will make them substantially safer.
In fact, she said, it is far from clear that legalizing brothels will have any effect whatsoever on the number of street prostitutes in the country.
The federal and Ontario governments are appealing a decision by Ontario Superior Court Judge Susan Himel that struck down the prostitution law's provisions prohibiting communicating and living off the avails, and another that makes it a crime to run a brothel.
The three prostitutes behind the challenge – Terri-Lynn Bedford, Valerie Scott and Amy Lebovitch – claim the provisions violate their constitutional right to security of the person by compelling them to work under unsafe conditions.
For the decision to be upheld, the Court of Appeal must conclude not only that the laws violate their rights, but that the government cannot justify those infringements.
The question of whether prostitutes choose their occupation freely is a volatile one. Some prostitutes unquestionably work to obtain drugs or food, but others insist they prefer the flexible hours and relative independence of their vocation.
Emily van der Meulen, a criminologist and health researcher at St. Michael's Hospital and the University of Toronto who has been observing the appeal, said that while some sex workers are compelled to work in the sex trade, "for the majority it's a job that they do to pay the rent, child-care bills, and/or school tuition."
A great many sex workers see decriminalization as a way of gaining access to labour laws as well as unions, guilds and associations to improve their working conditions, Ms. van der Muelen said in an interview.
"Policy makers and the public need to listen to sex workers to dispel the myths and misconceptions," she said. "Sex work is not inherently exploitative. The criminalization of prostitution-related activities is what creates the conditions for exploitation."
Ms. Bartlett-Hughes and co-counsel Jamie Klukach and Megan Stephens spent most of the day attempting to refute Judge Himel's conclusions.
They said that the trial judge made selective use of expert evidence at the trial and jumped to unwarranted conclusions based on assertions found in various reports and studies.
"The evidence she relied on was essentially opinions," Ms. Klukach said. "And they were opinions based on ideological perceptions."
Judge Himel also misconstrued evidence from several countries that have experimented with decriminalization, Ms. Klukach added. "Judge Himel essentially ignored it or overlooked its importance," she said.
Similarly, Judge Himel jumped to the conclusion that striking down the laws would allow prostitutes to operate more safely indoors, Ms. Klukach said. "Violence against prostitutes would continue regardless," she said. "In a decriminalized regime, you're still going to get violence."
Ms. Bartlett-Hughes argued that the prostitution laws were not put in place solely to protect prostitutes, but also to prevent the degradation of society's values by letting women market their bodies as commodities.
Parliament has a perfect right to balance a range of factors that come into play, she said, including ensuring that children are not exposed to bad role models and that neighbourhoods are not overrun by prostitutes and their customers.
Ms. Bartlett-Hughes noted that, while the law does make it difficult for prostitutes to take precautions such as hiring bodyguards or drivers, it does not prevent them from looking out for one another
The appeal is scheduled to take the rest of the week.