OTTAWA — Canada’s highest court will decide Friday whether prostitution laws violate the Constitution in a landmark ruling that will have implications right across the country.
The case was brought by three Ontario sex workers who want their trade decriminalized.
At issue are three laws that prevent sex workers from working indoors, screening clients, working collectively and hiring staff.
Postmedia News breaks down the case and what it means.
What does the law currently say about prostitution?
Prostitution, both the street and escort variety, is legal but three laws make certain related activities illegal.
1) It is illegal to reside in a bawdy house, or brothel, to be found in one without a lawful excuse, or to knowingly be the landlord, tenant or occupier of an establishment used for such purposes.
2) It is illegal to live off the profits of another person’s prostitution, a law largely aimed at pimping.
3) It is illegal to communicate in public for the purposes of prostitution. This would apply to a John who solicits sex, a prostitute who sells it or an individual seeking to recruit others into the business.
Who are the players in this case and what are they arguing?
Current and former sex trade workers Terri Jean Bedford, 54, Amy Lebovitch, 34, and Valerie Scott, 55, first brought the constitutional challenge before the Ontario Superior Court in 2009.
Collectively, they’ve worked as street prostitutes, masseuses, escorts, dominatrices, brothel owners and as advocates for sex-trade workers. They’ve experienced violence in their work to varying degrees and argue indoor prostitution is safer. They’ve taken various precautions to improve safety, from vetting new clients in public, verifying phone numbers and credit card information, hiring drivers and body guards and turning down intoxicated clients.
Bedford served 15 months in jail for keeping a bawdy house and would return to work indoors as a dominatrix if not for the fear of criminal liability. Lebovitch still works in the industry. Scott is now strictly an advocate, working with the group Sex Professionals of Canada.
They argue Canada’s three prostitution laws violate their right to life, liberty and security of the person and their right to freedom of expression under the Charter of Rights and Freedoms.
What have the lower courts ruled?
The Ontario Superior Court concluded all three laws violated the constitutional rights of prostitutes in that they were arbitrary, too broad and disproportionate.
The court found bawdy house laws went beyond the objective of decreasing community nuisance, while living off the avails laws targeted anybody who provides services to prostitutes, not just pimps, and increased the risk of violence. The prohibition on communication, meanwhile, was found to endanger prostitutes because it prevents them from screening clients.
The majority of the Ontario Court of Appeal agreed with the lower court to strike prostitution from the definition of activities deemed illegal at a bawdy house and changed the language of the living off the avails law to make it Charter compliant.
The Appeal’s court deemed laws prohibiting communication for the purposes of prostitution to be constitutional, thus overturning the lower court ruling.
The federal and Ontario governments appealed the bawdy house and living off avails rulings, while the claimants appealed the communication for the purposes of prostitution ruling.
What are the Supreme Court of Canada’s options?
A panel that included all nine Supreme Court judges heard arguments in June and have sorted through 22,000 pages of evidence, including that provided by more than 20 organizations and provincial attorneys general with intervener status.
The court can find all the laws constitutional or declare them all or certain aspects of them unconstitutional. If they opt for the latter, the court might strike them down and tell Parliament to fix them, immediately or within a certain time frame. The court could also do what the lower courts did and fix the laws itself by adding or removing words in a bid to make them Charter compliant.
What are some of the other interesting arguments in the case?
The Native Women’s Association of Canada argues there are different classes of sex workers. While some do it by choice, aboriginal women are often forced into prostitution, often at a young age due to addiction, poverty and abuse.
The group says legalizing brothels won’t help them, because aboriginal women will remain selected for the most exploitative forms of prostitution. The group favours the “Nordic model:” an asymmetrical system in which prostitutes aren’t criminalized, but being a pimp or customer is illegal.
Federal lawyers argued the Ontario Court of Appeal went too far when it struck down the Criminal Code ban on bawdy-houses on the grounds that it endangers sex workers by forcing them to work outside. Ontario lawyers also argued against decriminalization. Both say the intent of Parliament is to place limits on prostitution.
tcohen@postmedia.com
Twitter.com/tobicohen
