Stage set for landmark prostitution case
A landmark case that could leave prostitution decriminalized is drawing a lot of attention from intervening groups arguing for and against the laws on the basis of everything from morality to abortion to the spread of HIV.
An Ontario judge last year struck down three key anti-prostitution laws, though the ruling was put on hold pending an appeal, which is to be heard this week, starting Monday.
Superior Court Judge Susan Himel said the laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade were contributing to the danger faced by prostitutes.
The federal and Ontario governments disagree and are appealing that ruling, arguing the laws should stay on the books.
But the case has blossomed into one not just between the governments and the group of sex-trade workers who launched the challenge. There are seven interveners representing 19 groups that want to bring their perspective to the historic case.
The sex-trade workers say the laws violate the Canadian Charter of Rights and Freedoms by forcing prostitutes to choose between their liberty and their security. They say the laws prevent them from working indoors where it's safer, taking time to talk to a potential client to assess the risk they pose and hiring bodyguards.
Supporting their argument are the B.C. and Canadian civil liberties associations, a coalition of HIV/AIDS groups and several groups representing sex-trade workers.
"Even assuming that prostitution is inherently harmful, as the (governments) allege, this does not change the fact that the risks of physical violence against persons engaged in prostitution are increased by the impugned provisions," the Canadian Civil Liberties Association argues in court filings.
The fact that it would still be risky even with the laws off the books is irrelevant, because risk is at the core of many professions that don't face the similar laws, the association argues.
"It would be unconstitutional for the state to prohibit taxi drivers or airline pilots or police officers from taking basic precautionary measures to protect their personal security," the group says.
The Canadian HIV/AIDS Legal Network and a B.C. HIV/AIDS research centre argue that the laws impede sex workers' ability to negotiate terms of safe sex and are therefore also impeding efforts to reduce the spread of HIV.
"Due to the current prostitution laws, financial need and their vulnerability to violence and coercion, many sex workers are not in a position to refuse clients' requests to work without a condom," the groups say. "In other words, the risk of HIV transmission could be reduced, but the impugned provisions prevent sex workers from taking the necessary precautions to decrease their risk."
Sex worker groups POWER and Maggie's say such work is about personal autonomy, which is protected by the charter, making it similar to abortion.
"By criminalizing sex work, the impugned laws deprive individuals of the Section 7-protected interest in making fundamental personal decisions respecting their bodily integrity and sexuality," the groups argue in court filings. "The decision to pursue sex work is a choice about one's body, one's sexuality and specifically who to have sex with and on what terms. For some, sex work can be a form of creative expression."
A coalition of women's groups including the Canadian Association of Sexual Assault Centres and the Native Women's Association of Canada paints a far different picture of sex work.
The coalition says if the laws were taken out of the Criminal Code it would only protect the least marginalized sex workers and would legalize male sexual access to adult prostitutes, "no matter how coerced, destitute or ill."
The laws don't violate the charter rights of "prostituted women," rather they support those rights, the coalition argues.
"It would be illogical and contrary to principles of fundamental justice to decriminalize men's prostitution of women in order to protect women from those same men," they write.
Another group of interveners fighting to keep the laws on the books includes the Christian Legal Fellowship and the Catholic Civil Rights League. For them, the issue is one of morals.
Striking down the laws would rob Parliament of the ability to legislate morality, they say, and most Canadians abhor prostitution because it demeans sex workers, their clients and the community.
"Prostitution is disapproved of by every major religion. The position advanced by the interveners is not a fleeting view of a prudish minority or legal moralism," they argue. "If Justice Himel's decision is upheld, all members of society will likely be exposed to the effects and abuses of regularly practised prostitution and its indecencies."
The religious groups also adopt the federal government's argument that the law doesn't force people into prostitution, so it is not Parliament's obligation to minimize harm for those who "flout" those laws.
The sex workers argue that approach trivializes their very serious concerns and embraces a blaming the victim perspective.
While this decision affects the laws in Ontario, it remains to be seen if courts in other provinces will follow the Ontario decision. It is more likely they will await the outcome of this case, which could be taken all the way to the Supreme Court of Canada.