Six years and 25,000 pages of evidence after it began, a landmark Charter challenge to the country’s prostitution laws reaches the Supreme Court of Canada Thursday.
The central question the court must face is whether laws set up to regulate prostitution – a profession that is itself legal – endanger sex workers by forcing them to operate alone in the shadows.
Those challenging the law insist that prohibitions on brothels, pimps and openly communicating with customers have made prostitutes easy prey.
However, an assemblage of governments and religious groups maintain the laws prevent human trafficking, neighbour disruptions and the wholesale degradation of Canadian society.
The three sex workers spearheading the litigation – Terri Jean Bedford, Amy Lebovitch and Valerie Scott – are arguing that the laws violate the Charter right to life, liberty and security.
So, far an Ontario trial judge and five Ontario Court of Appeal judges have largely agreed that prostitutes would be safer if they had the right to set up brothels and hire staff to protect them.
The appeal court gave one victory to the Crown in 2012, ruling in a 3-2 split that communicating for the purposes of prostitution will remain illegal – a finding that Alan Young, a professor at York University’s Osgoode Hall law school, and his co-counsel, Marlys Edwardh and Daniel Sheppard, are asking the Supreme Court to reverse.
Politicians and an array of pressure groups are waiting in the wings, ready to spring into action and push for legal changes after the Bedford decision is rendered.
Lee Lakeman, a spokesperson for the Vancouver Rape Relief and Women’s Shelter, said it’s critical we have regulations that neither victimize vulnerable sex workers nor allow customers to purchase sexual services on a whim.
“In Vancouver, we have suffered the overrepresentation of aboriginal women in prostitution outdoors and the overrepresentation of Asian women indoors and often women pressed into prostitution by a lack of social programs to protect them from the desperation of poverty,” Ms. Lakeman said Wednesday.
“We wish to decriminalize those caught in prostitution and criminalize those who harm others with this cruel trade in women,” Ms. Lakeman said.
No one will be happier to see the case end than the lawyer who launched the mammoth litigation and who has sunk more than a half-million dollars of pro bono work into it.
Prof. Young said that what began as a mission to end an epidemic of prostitutes killed or abused by violent clients has been increasingly misrepresented by opponents.
“Various naysayers have tried to recast this security claim as a veiled attempt to industrialize and commercialize the sex trade,” he said.
“In fact, I have been accused of being a sex industry lawyer working for the interest and benefits of drug traffickers, pimps and mobsters.”
Federal and Ontario lawyers, aided by a coalition of religious groups, maintain that prostitutes have voluntarily chosen a risky lifestyle that degrades themselves and the community as a whole.
They say that permitting, unrestrained, above-ground prostitution would lead to a proliferation of exploitative commercial operations run by exploitative pimps.
In written submissions, government lawyers cautioned the Supreme Court not to open the door to underage prostitution and trafficking of vulnerable sex workers from abroad.
Ontario prosecutors Jamie Klukach, Christine Bartlett-Hughes and Megan Stephens stressed that Parliament chose to make prostitution legal, yet prohibit some of its most objectionable manifestations – such as street soliciting, brothels and pimping. That choice must be respected, they said in a legal brief.
“Even if it were possible for single prostitutes to work out of their homes without causing neighbourhood disruption or harm to public health and safety, there would still be a real risk that such premises could contribute to the problems of child exploitation and human trafficking by providing more isolated and private setting in which these activities could thrive below the radar of law enforcement,” the Ontario brief said.
However, Ms. Bedford, Ms. Scott and Ms. Lebovitch maintain there are other, perfectly valid laws that target child prostitution and human trafficking without at the same time endangering prostitutes.
Both sides claim the experience of countries that have liberalized prostitution laws supports their position.
Catherine Healy, national co-ordinator of the New Zealand Prostitutes’ Collective, said Canada has a chance to be a world leader by decriminalizing prostitution.
“New Zealand decriminalized 10 years ago and recognized the importance of supporting the occupational safety and health of its sex workers,” she said in an interview. “Canada, which has a strong record in human rights, has a similar set of laws to those we repealed in New Zealand for the obvious harm they caused to sex workers.”
Both sides of the debate have also launched a public battle in recent weeks to win over government and public opinion in the event that the laws are struck down.
“Everyone seems to have an opinion about what the law should be, but frankly these arguments should be addressed to Parliament and not to a court of law,” Prof. Young said.
Places where prostitution is legal
The Prostitution Reform Act aimed to create a safer and healthier environment for people selling sexual services. It placed significant responsibility for regulating brothels (zoning, licensing and advertising) into the hands of local governments.
While prostitution has long been tolerated, the Dutch Penal Code was revamped to allow brothels, and created a licensing scheme to regulate the prostitution industry and give sex workers the same rights as other workers. In 2006, authorities tightened controls by closing red-light districts.
The only U.S. state to legalize prostitution, Nevada allows counties to regulate the industry via a special section of the tax code. Counties limit the location of brothels to communities with populations fewer than 400,000. Licences determine the number of brothels within those boundaries, the number of sex workers, their working hours, health regulations and advertising.