A lawyer at a landmark prostitution appeal has produced an unexpected endorsement of indoor prostitution and brothels during a court hearing – from Justice Minister Rob Nicholson.
Quoting triumphantly from a 1985 parliamentary committee meeting, lawyer Alan Young told the Ontario Court of Appeal on Wednesday that Mr. Nicholson publicly condemned the dangers of street prostitution and spoke favourably of brothels.
“Do you not agreed that maybe the street corner or the alley or the parking lot may be more dangerous, for instance, than the bars or the hotels of the small brothels?” Mr. Nicholson was quoted as asking a witness at the hearing, which was examining some of the very provisions now under legal assault.
In the excerpt, Mr. Nicholson, now a long-serving justice minister in the Harper cabinet, followed up by asserting that it would be “a good thing” to move prostitutes indoors and off the streets.
“Thank you, Justice Minister,” Mr. Young said, after putting down the excerpt. “But then, his government didn’t allow them to go behind locked doors and open brothels. It’s hard to comprehend.”
Justice Department lawyers at the appeal said nothing in response on Wednesday, but will have another opportunity to address the court on Friday.
In the decision under appeal, Ontario Superior Court Judge Susan Himel ruled that laws prohibiting prostitutes from communicating with potential customers, working in brothels and hiring bodyguards heighten the dangers they face.
A key question dominating the appeal has been whether prostitution is more dangerous indoors or on the street.
Mr. Young and three prostitutes who launched the legal challenge contend the law endangers women by making it impossible for them to set up indoor operations where they can operate safely and legally.
Mr. Young told the court that the sole reason Parliament enacted the legislation in 1985 was to respond to a public furor over prostitutes causing a nuisance in neighbourhoods. He said the Senate approved the laws after being promised a more thorough review would follow soon, but it never did.
Instead, Mr. Young said, it became increasingly evident that street prostitutes were moving into less visible areas and shadowy brothels were operating illegally.
Federal lawyers have argued otherwise, saying that legalizing brothels is no answer to the problems of prostitution. They maintain that selling sex is an inherently dangerous occupation that needs to be discouraged both in public places and brothels.
Mr. Young argued on Wednesday that using restrictive laws to discourage prostitution is as wrong-headed as discouraging smoking by outlawing cigarette filters and anti-smoking patches.
Prohibiting filters or patches would clearly raise the cancer rate, Mr. Young said. By the same token, he said that denying prostitutes the relative safety of a brothel or a paid driver increases the chances that they will be end up beaten, raped or dead.
“You can't deter legal conduct by making it riskier,” Mr. Young said. “It is ethically unsound. No government should be able to endanger its citizens in the name of sending a message.”
During the 1990s, when prostitutes were disappearing from downtown Vancouver, Mr. Young said a group of them opened a refuge named Grandma’s where they could bring their clients to be safe.
“The police shut it down,” he told a five-judge panel. “They took away an obvious safety measure at a time of great crisis.”
Mr. Young said the crisis is getting worse. He said that in 2007, the most recent year for which statistics are available, 15 prostitutes were murdered, compared to an average of seven per year over the preceding decade.
Some of the judges urged Mr. Young to quantify the dangers of street prostitution compared to indoor prostitution. Mr. Young said research is very thin on the question, however, a Vancouver study conducted several years ago found that 13 per cent of prostitutes working indoors reported incidents of violence compared to 37 per cent of street prostitutes.
He told the court that brothels and bodyguards would not be a panacea because many drug-addicted prostitutes would be unlikely or unable to avail themselves of legalized brothels.
At the same time, Mr. Young said that any legal regime that cause the rate of violence to increase by even one per cent is shameful and unconstitutional