Men who pay women for sexual gratification are the only individuals who should be prosecuted in connection with prostitution, the Ontario Court of Appeal was told Thursday.
The appeal has dwelt on prostitutes to the exclusion of the real culprits – male customers for whom purchasing sex is "the world's oldest pastime," said UBC law professor Janine Benedet, representing the Women's Coalition for the Abolition of Prostiturion.
She was addressing a five-judge panel hearing an appeal of an Ontario Superior Court decision that struck down prohibitions on communicating for the purpose of prostitution, living off the avails and keeping a brothel.
Prof. Benedet said that aboriginal women make up a disproportionate number of street prostitutes, yet no one has spoken out about their plight as marginalized victims of a system that turns a blind eye to their commodification.
"Aboriginal women deserve the same chance to become judges, lawyers and bankers," she said. "Instead, we are talking about taking women to concrete stalls on the outskirts of town like farm animals to service mostly non-aboriginal men."
She asked the court specifically to strike down only the portion of the laws that allow for prostitutes to be prosecuted.
"Criminalizing women for their own good is arbitrary," Prof. Benedet said.
She dismissed any notion that the law can simply be reformed to allow prostitutes to have more time to "screen" prospective customers with fear of arrest before strking a deal.
"What this does is download the responsibility from the state to the individual women to look after themselves," Prof. Benedet said.
In another submission, a lawyer for the Christian Legal Fellowship, Ranjan Agarwal, said that the prostitution laws were really an attempt by Parliament to abolish prostitution without explicitly doing so.
"Parliament has crafted a regulatory regime aimed at eradicating prostitution because it is an attack on the fundamental values of modern Canadian society," said Mr Agarwal, who also represents Catholic Civil Rights League and REAL Women of Canada.
However, Mr. Justice David Doherty asked Mr. Agarwal if it would have made sense for Parliament to increase the dangers of prostitution to women in the name of emphasizing moral behavior.
"Wouldn't that be a grossly disproportionate response?" he said.
Mr. Agarwal replied that the harm caused to some prostitutes by laws that prevent them screening clients or hiring bodyguards and drivers is an unfortunate "side effect" of the legislation.
The federal and Ontario governments have appealed a decision by Ontario Superior Court Judge Susan Himel that struck down the prostitution law's provisions prohibiting communicating and living off the avails, and another that makes it a crime to run a brothel.
The three prostitutes behind the challenge – Terri-Jean Bedford, Valerie Scott and Amy Lebovitch – claim the provisions violate their constitutional right to security of the person by compelling them to work under unsafe conditions.
For the decision to be upheld, the women must persuade the Court of Appeal judges not only that the laws violate their rights, but that the government cannot justify those infringements.