Public safety could be endangered if the Ontario Court of Appeal decides to strike down the prostitution laws without giving governments time to fill the void, a federal Crown lawyer said this afternoon, on the first day of a landmark, five-day appeal.
Crown counsel Michael Morris asked a five-judge panel hearing the case to give the government 18 months to draft new laws that will prevent neighbourhoods being plagued by prostitutes and a proliferation of brothels.
However, Mr. Morris devoted the bulk of his arguments to tearing down the reasoning behind a trial judge's decision last fall which found that the prostitution laws are unconstitutional because they increase the dangers that are inherent in the prostitution trade.
He said that Ontario Superior Court Judge Susan Himel misunderstood the significance of evidence, paid heed to witnesses who didn't know what they were talking about and erroneously allowed herself to be drawn into a policy debate that belongs exclusively in Parliament.
Mr. Morris insisted that prostitution is an economic choice that sex workers make knowing that it is unsafe and that the challenge before the court is based on a false premise that the state must protect prostitutes regardless of how they engage in their work.
"It is not a constitutionally-protected right," he said. "Unless this court accepts that prostitution is a constitutionally protected right that has to be protected by Parliament, this court should dismiss those arguments."
The federal and Ontario Crown are appealing an Ontario Superior Court decision last fall which struck down the core of laws that target prostitution, including running a brothel, living off the trade and communicating for the purpose of prostitution.
Mr. Morris, who concluded his arguments late afternoon, also said that the trial decision essentially reargued many of the issues that were decided against them by the Supreme Court of Canada when it heard a reference case on the prostitution laws in 1990.
However, several of the judges quickly registered disagreement with his proposition. They said that the current challenge raised an entire new ground - whether the law creates dangers for prostitutes that violate their Charter right to security of the person.
The litigants in the case are Terri-Jean Bedford a flamboyant dominatrix, and two former prostitutes, Valerie Scott and Amy Lebovitch.
York University law professor Alan Young, who represents the sex-trade workers, contended that prohibiting communication renders prostitutes unable to "screen" potential clients, hire security or move behind the relative safety of closed doors.
Superior Court Judge Susan Himel's ruling was based on a broad conclusion that current laws offer little protection. She pointed at evidence that violence against sex workers is endemic - from serial killings by Vancouver farmer Robert Pickton, to missing prostitutes in Alberta and frequent violence against sex trade workers in the Atlantic region.
Mr. Young and his clients agreed in the fall to a stay of Judge Himel's ruling, meaning that it is still against the law for prostitutes in Ontario to work in brothels and openly solicit customers.
The Himel decision created a sensation in the public. Among prostitutes, opinions are divided. Some applaud it as a move toward ending the constant jeopardy that many of them face in their trade. Others feared being caught in red tape as they deal with health inspectors, tax collectors and licensing officials as a result of decriminalization.
Opponents warned that lifting the stay would see street prostitutes descend on residential neighbourhoods and allow pimps to operate freely.
However, in her ruling, Superior Court Judge Susan Himel suggested chaos would not reign in the streets in the event of decriminalization, since other Criminal Code provisions would permit authorities to control violent pimps or prostitutes who become a nuisance.
In her 131-page ruling, which took a year to produce, Judge Himel found that laws set up to protect prostitutes actually endanger their safety, forcing them to furtively engage in hasty transactions conducted in shady locations.
"By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance," she said.
"I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public."
Judge Himel cited approvingly efforts made by countries such as New Zealand, Australia and Germany to decriminalize and control the sex trade in a safe manner.
Both sides in the case spent years amassing a vast body of international evidence, including dozens of witnesses.
The Crown argued that prostitution can be equally dangerous whether it is conducted in a car, an open field or a luxurious boudoir.
It urged Judge Himel to also reflect on the fact that prostitution is inherently degrading and unhealthy, and should not be encouraged as a "career choice" for young women through a slack legal regime.