Common sense dictates that prostitutes are endangered by laws that make it difficult to protect themselves against potentially violent customers, several judges said during a landmark constitutional challenge.
The judges, who are deciding whether to uphold an Ontario court ruling striking down provisions of the Criminal Code relating to prostitution, kept federal prosecutor Michael Morris on the defensive in the first of five days of hearings on Monday as they pointed out apparent contradictions in the law.
"I find it hard to understand why it isn't self-evident that the provision impacts on the ability to carry out prostitution safely," Mr. Justice David Doherty said at one point.
Judge Doherty said the law that prevents a prostitute from communicating with a client compels her to size up him up in haste or run the risk of being arrested. The prohibition against living off the avails of prostitution precludes prostitutes from hiring a bodyguard or driver, he said.
Judge Doherty compared the situation for prostitutes with that of a banker who needs to deliver a bundle of currency across town and has to choose from two options - send it in a well-guarded armoured truck, or walk across town with it tucked under his arm.
"I would have thought that we don't really need evidence that it's safer to take precautions when you're carrying money from one place to another," he said. "It's a matter of common sense that these kinds of measures can make trading in sex a lot safer."
The federal and Ontario governments have appealed 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-Lyn 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 women must persuade the Court of Appeal judges not only that the laws violate their rights, but that the government cannot justify those infringments.
Mr. Morris insisted on Monday that becoming a prostitute is an economic choice that individuals make knowing it is unsafe. He said the legal challenge is rooted in 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."
However, the judges took turns noting the incongruity of the government making it difficult to practice a trade that is itself perfectly legal.
"Can you name one other legal occupation in Canada where the participants are prevented from doing things like hiring a bodyguard or a driver?" Mr. Justice James MacPherson asked. He observed that if a prostitute were to call Pinkerton's security firm to hire a bodyguard for three months, the driver would be subject to prosecution.
Judge Doherty said that the situation is akin to the government prohibiting a convenience store from using security cameras. "The owners would come and say: 'Hey, they are putting us at significant risk when someone comes in at 2 in the morning,'" he said.
"What the respondents are saying is that prostitutes can't take the security steps anybody else would take in any other business," Judge Doherty added. "To comply with the law, they have to take much greater risks than anybody else."
A third judge, Madam Justice Eleanore Cronk, observed that the prostitutes challenging the law do not argue that the government has to take active steps to protect them - just that it must remove legal impediments to them enhancing their own safety.
"It has nothing to do with whether the government must enter the field or be obliged to make it safer," Judge Cronk said. "Rather, it has to do with not making it un-safer."
The judges also took issue with Mr. Morris's contention that prostitution laws are too remotely connected to the dangers prostitutes face for them to be liable to being struck down.
"What's remote about a law that prohibits a prostitute from having a driver or a bodyguard?" Judge MacPherson demanded. "These laws are pretty direct in preventing them from doing obvious things to do."
In other arguments on Monday, Mr. Morris said that Judge 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.
The other two judges sitting on the appeal are Madam Justice Kathryn Feldman and Mr. Justice Marc Rosenberg.