TORONTO – Three sex workers launched a controversial constitutional challenge against Canada’s prostitution laws on Tuesday, arguing that decriminalizing some elements will make it safer for them to work.
The applicants – a dominatrix, a former sex trade worker and a working prostitute – say provisions under the Criminal Code endanger their safety by preventing them from taking precautions, such as working indoors or hiring security guards to protect themselves. The Government of Canada disagrees. It contends that there is no such thing as a safe place for prostitution, regardless of whether it’s legal or illegal.
"This case is not about a constitutional right to be a prostitute," Alan Young, who is representing the women, said in his opening remarks to Justice Susan Himel of the Superior Court of Ontario on Tuesday in Toronto.
It is about depriving them of security and liberty, he said.
Buying or selling sex is legal in Canada, but the contested provisions make it illegal to run a bawdy house, to communicate for the purposes of prostitution or to live on the avails of prostitution – known colloquially as the pimp law, but which critics say is broad enough to potentially penalize anyone who lives with a prostitute or works for one.
Young, an Osgoode Hall professor who has headed a volunteer project to improve working conditions for sex trade workers, called the laws a "sinister contradiction" since they were designed to get women off the streets, while criminally charging them if they conduct their business indoors.
"We’re not here to argue whether there should be prostitution or not. We’re saying, it’s here, it’s legal and the government cannot put people in harm’s way through their laws," he said.
"We know people have gone missing in Vancouver, in Winnipeg, in Calgary. There’s hundreds of them. And so it’s a sinister contradiction to tell people you can’t move inside when that may be the only place where you can protect yourself from a predator."
In documents filed in court, the Attorney General of Canada argues that although the provisions may be contentious "they are underpinned by legitimate state interests that balance the myriad of individual rights and societal interests at stake."
Prostitution carries dangers and harms to the community, attorney general counsel Michael Morris said outside the courtroom, and it’s up to Parliament to decide which aspects should be criminalized.
"The Supreme Court upheld two of these three provisions in 1990, and we say nothing has changed since then in terms of demonstrating that there are new grounds," he said.
Also involved in the proceedings is the Attorney General of Ontario, the Catholic Civil Rights League, the Christian Legal Fellowship and REAL Women of Canada.
The rights groups plan to discuss the harm that prostitution causes society, especially those who are forced to engage in it. Their lawyer, Ranjan Agarwal, said Tuesday his clients worry that striking down the provisions is "a gateway to legitimizing prostitution in Canadian life".
Young said studies and testimony from sex workers show that while violence still occurs indoors, there is less of it.
He said removing these provisions will not solve the "complex problem" of prostitution, one that includes sex workers who are driven to the life by poverty or addiction to drugs, but it can better equip and protect the strong, independent workers who are ready to do business.
The women launching the challenge say it makes common sense to give prostitutes the ability to better protect themselves.
"Just because some people have a moral problem with the idea of commercial sex does not make it all right for us to be the social punching bag for society," said Valerie Scott, one of the applicants who now runs an advocacy group for sex trade workers called Sex Professionals of Canada. She compiles a "bad date" list and posts it online, but said the reality is that rapes, robberies and beatings of prostitutes happen on a daily basis.
"If you’re out on the street, you’re naked to the world. When you’re inside, you’re comfortable, you can clean up, you can socialize, you can be a hostess to your client and be very accommodating to your client. But this way, you’re placing everybody in jeopardy," said Terri-Jean Bedford, a dominatrix who is a co-applicant.
Bedford was convicted in 1999 of keeping a common bawdy house for running the S&M Dungeon and she does not want to go back to her line of work if she is opening herself up to another police raid.
"They never returned my panties," Bedford told a mob of reporters that gathered outside the courthouse.
Dressed top to bottom in black leather, with fiery-coloured hair, the 49-year-old grandmother playfully played up her persona by flicking her crop for the cameras. But she said she is very serious about the challenge.
"Just because I have the crop doesn’t mean I don’t mean business. This is what business is all about," she said.