Tonda MacCharles, Ottawa Bureau

Supreme Court prostitution case: Judges challenge government to justify brothel ban

The Supreme Court of Canada Thursday saw bare-knuckled exchanges over where and how women and men should be able to legally buy and sell sex

OTTAWA — Usually the place of high-minded legal arguments, the Supreme Court of Canada Thursday saw bare-knuckled exchanges over where and how women and men should be able to legally buy and sell sex.

The country's top court challenged government lawyers to justify criminal laws against brothels that drive vulnerable prostitutes into a more dangerous place — the street — to practice what remains a legal activity.

Michael Morris, lawyer for the federal government, suggested the court should show deference to Parliament's legislative choice that attempts to curb violence against women and the social nuisances that bawdy houses bring to communities.

But Alan Young, lawyer for dominatrix Terri Jean Bedford, former prostitute Valerie Scott, and downtown eastside Vancouver's Amy Lebovitch, blasted the Crown's arguments as "insulting" to women for proposing "the only safe option is to exit. That's an ideological position."

Young said the "most disturbing aspect" of the government's argument was to call for judicial deference to Parliament. He said successive government reports from 1985 to 2006 concluded the law is not effective in achieving its purpose, that violence is increasing, and that Ottawa should relax prohibitions on bawdy houses, living on the avails of prostitution, and communications for the purposes of buying and selling sex.

"When you can't explain the rationale" for the law, he said of the Crown's case, "you fall back on deference." A full nine-member bench faced three dozen lawyers and a courtroom full of sex trade workers, academics and law students riveted by tough judicial questions that cut through legalese.

The judges laid bare the heart of a moral and legal dilemma: should prostitutes engaging in a legal activity — exchanging money for sex — be prevented by law from doing it in a safe house where they can hire protection, or from using drivers and bodyguards who "live on the avails" of prostitution? Should streetwalkers face jail for communicating with potential clients, screening "bad dates" or negotiating condom use?

The Ontario Court of Appeal upheld the communications ban, but would have allowed brothels and those who would support or protect, but not exploit, sex workers.

Chief Justice Beverley McLachlin wondered about the law's "over-breadth" and prompted laughter when she remarked it prevents prostitutes from organizing themselves and hiring "Brinks or somebody" to provide security against dangerous pimps or sex clients.

Several times, the judges asked whether the law has a disproportionate impact on vulnerable impoverished or drug-addicted women who have little or no choice but to sell their bodies.

But Morris, backed by lawyers for the Ontario and Quebec governments, said bawdy houses aren't the answer. They said there is little evidence to show moving prostitution indoors eliminates violence or other criminal activity, such as drug use, human trafficking, public drunkenness or organized crime. Morris said the personal "interests" of those who choose to engage in what he called the "economic activity" of prostitution should not "trump" the main purpose of law, which was to prevent the harmful results of that activity.

Young said his clients were not arguing for legalization, nor challenging Parliament's authority to legislate in the area. He said Ottawa could provide greater protection for what he called "survival sex workers" or those who eke out a living on the street.

Justices Marshall Rothstein and Michael Moldaver challenged Young and co-counsel Marlys Edwardh, pointing out their downtown Toronto clients are not among the most vulnerable — such as drug addicts or desperate aboriginal women — or the ones with "restricted choice" who are most in need of the Charter's Section 7 protection. That guarantees security of the person and not to be deprived of it without fundamental justice.

Young said the bottom line for all women is "If you have a liberty to do it, you shouldn't be condemned by Parliament."

The high court reserved its decision on whether to partially or completely strike the laws. Since Justice Morris Fish is retiring in August, the court has eight months to rule.