The Supreme Court of Canada will issue a landmark ruling about prostitution laws today that could change the way sex workers ply their trade and how communities are affected by the sex trade.
Three sex-trade workers launched an action in 2009 against anti-prostitution laws they say prevent them from seeking safety measures for their own protection.
Terry-Jean Bedford, Amy Lebovitch and Valerie Scott are three Ontario sex workers who argue their right to security and safety has been violated by laws that forbid working in what they say is the relative safety of bawdy houses or a private home.
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They also argue that they're prevented from hiring bodyguards or drivers for their own protection, and that a prohibition on communicating with prospective clients in the streets means they can't screen johns for signs of violence.
They have already had a degree of success in the lower courts. An Ontario Superior Court judge overturned the laws completely.
In 2012, the Ontario Court of Appeal struck down the bawdy house prohibition as well as the constraint against living off the avails of prostitution unless there are "circumstances of exploitation."
However, the provision prohibiting communicating, a mid-'80s measure passed to keep prostitutes and clients off urban streets, was upheld.
Case based on making a legal activity safe
Alan Young, one of the lawyers representing the sex workers, said in a phone interview from Toronto that the case to be decided by eight judges of the country's top court is based on safety.
"We had 30,000 pages of evidence on how the law is impacting on the safety of sex workers," he said.
As an example, he cited a case in 2002 in Vancouver's Downtown Eastside where sex workers were disappearing from the streets in record numbers. Some of those women turned out to be the victims of Robert Pickton, now a convicted serial killer, who kidnapped women and killed them at his pig farm outside the city.
"A downtown group of sex workers set up a co-operative house called Grandma's Place where sex workers could bring their clients so they wouldn't have to necessarily get in a car and go down some dark alley. And the police ended up charging the proprietor for setting up a common bawdy house and shut it down," Young said.
"You can't have a government that says you have a legal right to do this, but we will take away all safe routes of achieving that result.… It goes against the rule of law, which is supposed to enhance our security, not deprive us of security," he said.
Pickton case prompted the challenge
It was the Pickton murders that prompted Young to seek applicants to challenge the anti-prostitution laws. Bedford, a Toronto dominatrix who often appears dressed in leather and carrying a whip, is a former client. Scott is a former prosititute and well-known advocate for sex workers' rights. Lebovitch, he said, works out of her home and was worried about losing her house, which could be forfeited it she were to be charged.
Young said the women are essentially applying to the court to declare what the law is and whether it violates their constitutional right of security of the person by barring them from rudimentary safety measures.
"My job is to invalidate the law," he said. "I always call it demolition work, to clear the field so that the relevant stakeholders, communities, sex workers themselves can then speak to Parliament and get a law that works for everybody in this country."
Government is appealing lower court ruling
The striking down of two of the prostitution laws is being appealed by the governments of Canada and Ontario. In documents before the court, lawyers argue that prostitution itself is an inherently risky business and sex workers are endangered even if they work in bawdy houses or private homes.
The violence prostitutes experience comes from pimps and johns, the federal government argues, and any possible harm due to restrictive laws must be outweighed by "important societal objectives: protecting those engaged in prostitution, and reducing harm to children and communities."
The government also worries about prostitution being "normalized" and that if sex workers are legitimized, they risk becoming role models for children.
In the event the top court allows bawdy houses and living off the avails of prostitution, the government asks that Parliament be given time to consider new legislation.