Bowing to speculation that Canada will be plunged into a wild social experiment in prostitution if a landmark court ruling stands means turning a blind eye to violence against sex-trade workers, court heard Monday.
It's now up to an Ontario Court of Appeal judge to decide whether what amounts to decriminalized prostitution should come to the province, as another judge ruled, or whether the ruling should be put on hold to allow Parliament to craft stop-gap measures.
Laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade are "contributing to the danger faced by prostitutes," an Ontario Superior Court judge said in September in striking them down.
The judgment, however, was subject to a stay, during which the laws remain in place. But with that set to expire on Saturday, the federal and provincial governments are pleading with the court to extend the stay until a proper appeal can be heard.
Mr. Justice Marc Rosenberg of the appeal court has reserved his decision. He said he would try to issue his ruling by Saturday, but in case he cannot he extended the stay until his decision is released.
If no stay is granted, Canada will be plunged into a "social experiment unprecedented in this country," federal government lawyer Michael Morris told the appeal court on Monday.
"It will profoundly and irreversibly alter the status quo," he said.
These laws "are at the heart of the regime chosen by Parliament to ... deter prostitution in Canada."
As far as alternative tools in the Criminal Code for police to crack down on activities such as human trafficking, exploitation or drug dealing, there is "nothing," Mr. Morris said, which brought a rebuke from the judge.
"We don't have nothing, so let's talk about what we do have," Judge Rosenberg said. "There's a whole host of legislation in place ... so let's not overstate it."
Mr. Morris clarified, saying while there are alternative provisions, they are not effective substitutes for the laws that have been struck down.
Lawyer Alan Young, who successfully argued in the lower court to have the laws struck down, said given the judge's ruling that the laws contribute to the harm faced by prostitutes, it is "ethically problematic" to put a stay in place.
"Granting a stay does serve as a perpetuation of violence," he said.
A stay is not the answer, Mr. Young said, instead proposing an expedited appeal. Mr. Morris said an appeal could be heard as early as June, but Mr. Young pushed for an even earlier date.
If the original ruling stands after appeal, a stay will have prevented sex workers from "taking rudimentary safety measures" that could save their lives, Mr. Young said. If no stay was in place the public might have been inconvenienced for a time, he said.
The federal government listed a litany of "likely" scenarios should Judge Susan Himel's ruling come into effect.
Removing the bawdy house law would likely lead to crimes such as human trafficking, prostitution of minors, extortion and assault going undetected, Ottawa argues. The Ontario government's arguments echo Ottawa's.
More prostitutes will likely be exploited by pimps, police would be forced to "abandon all ongoing investigations" and doing away with the laws will "likely encourage the movement of prostitutes to Ontario from other jurisdictions," the government adds.
Sex-trade workers say removing the laws will allow them to work indoors, hire bodyguards and communicate with potential clients to determine whether they would pose a threat.
A group of sex-trade workers in British Columbia has also launched a challenge to Canada's prostitution laws.
The Canadian Press