The federal government has asked the Supreme Court of Canada to put the brakes on the impending decriminalization of a key law that would permit a form of living off the avails of prostitution.
A 30-day stay the Ontario Court of Appeal imposed last month when it rewrote the law's pimping provision will end within days unless the Supreme Court intervenes.
In its landmark decision, a five-judge panel of the provincial appeals court was also unanimous in removing prohibitions on keeping a brothel – a measure that takes effect in 11 months. The court said that it is senseless to have a law that compels prostitutes to work in dangerous isolation given that prostitution itself is legal. It granted prostitutes the right to set up brothels and hire staff to protect them.
It allowed the Crown one victory in the constitutional challenge of the law, ruling in a 3-2 split that communicating for the purposes of prostitution will remain illegal.
The landmark decision is binding on Ontario courts and sets up a final showdown at the Supreme Court of Canada next fall or in early 2013.
The expiration of the 30-day delay on the revision of the pimping provision to target only those who live off the avails of prostitution "in circumstances of exploitation" imparted a sense of urgency to the government's formal request for leave to appeal the ruling.
Prosecutor Michael Morris raised the spectre of neighbourhoods being frequented by prostitutes and their bodyguards. He said that the impending "regulatory void" will permit prostitutes, bodyguards, drivers and booking agents to go about their business openly.
"If the stay is not extended, the public interest, communities and neighbourhoods and the proper administration of justice will suffer irreparable harm," Mr. Morris said. "It does so without affording any opportunity for the various levels of government to legislate in response to address the consequences and prevent any resulting harms."
However, a lawyer for the three sex workers behind the constitutional challenge of the prostitution law's provisions accused the government of sitting on its hands since the Ontario decision was rendered on March 28.
In documents filed at the Supreme Court, lawyer Alan Young said that the government's "11th-hour request" has made it virtually impossible for his clients to provide a meaningful response, cross-examine Crown experts or provide evidence to support their arguments.
"It is submitted that this late request also puts this Honourable Court in the difficult position of making a decision, even a temporary one, on the basis of a fragmented and potentially misleading record," said Prof. Young, who teaches law at York University's Osgoode Hall Law School.
The Ontario Court of Appeal concluded that the brothel and pimping laws combine to create grave dangers for prostitutes. They reasoned that they prevent prostitutes from congregating in the safety of a brothel or hiring staff to protect them from dangerous clients.
Prof. Young emphasized that any delays in executing the Ontario decision will add to the dangers that the court found prostitutes face.
He also said that the ruling does not prevent police from acting to stop violent or exploitive pimps or prevent human smuggling or underage prostitution.
Addressing the overall need for the Supreme Court to hear the case, Mr. Morris said it raises a matter of national importance. He said that the Ontario judgment represented, "a fundamental shift in criminal law and social policy."
By deciding what aspects of the prostitution laws are or are not constitutional, Mr. Morris said, the litigation goes to the heart of Parliament's ability to create and enforce laws dealing with complex social problems.
He also warned that the prostitution laws will be applied inconsistently from one province to another if the Supreme Court does not act to clear up the confusion.