Ontario's highest court has legalized brothels in a sweeping decision that condemned current prostitution laws for adding to the hazards of a highly dangerous profession.
The Ontario Court of Appeal allowed the Crown just one victory, ruling that communicating for the purposes of prostitution will remain illegal.
The landmark decision is binding on Ontario courts and sets up a final showdown at the Supreme Court of Canada next fall or in early 2013.
Ontario Attorney-General John Gerretsen said on Monday that he intends to discuss appealing the decision with his federal counterparts. "Our main concern is that people feel safe in their communities, feel safe in their homes, and this kind of issue may very well need legislative action," he said.
The five-judge appellate panel said unanimously that prostitutes may set up brothels and hire staff to protect them. They said that it is senseless to have a law that compels prostitutes to work in dangerous isolation, given that prostitution itself is legal.
The judges also explicitly rejected a Crown argument that prostitutes make an informed decision to enter a dangerous trade, saying that prostitutes deserve as much protection as other citizens who work in "dangerous, but legal, enterprises."
However, the court majority – Mr. Justice David Doherty, Mr. Justice Marc Rosenberg and Madam Justice Kathryn Feldman – salvaged the communication provision on the basis that it has kept neighbourhoods free of organized crime, drugs, noise and unwanted solicitations.
They played down arguments from prostitution activists that those it hurts most are marginalized street prostitutes who work in the shadows and must assess potential clients hastily.
Mr. Justice James MacPherson and Madame Justice Eleanore Cronk took sharp issue with the majority on the point, arguing that the communication provision significantly worsens the plight of street prostitutes.
"The violence faced by street prostitutes across Canada is, in a word, overwhelming," they said. "One does not need to conjure up the face of Robert Pickton to know that this is true."
The brothel ruling takes effect in a year. However, as of April 25, prostitutes can engage bodyguards. The court remodelled the pimping provision to target only those who live off the avails of prostitution "in circumstances of exploitation."
The Sex Professionals of Canada immediately urged Ontario municipalities to begin discussing licensing provisions that will ensure health and safety of brothel workers and their clients.
Municipalities are expected to create a patchwork of regulation. Many, such as Niagara Falls, already license body-rub parlours. About 40 workers are employed in the city's four licensed parlours. Toronto has 25 body-rub parlours and 482 licensed workers.
Eddie Francis, mayor of Windsor, Ont., said his planning staff are looking at zoning issues that isolate brothels from schools and family neighbourhoods without creating red-light districts.
Meanwhile, police forces are split on the logic and propriety of continuing "sweeps" of body-rub parlours in search of prostitutes and their clients.
"We stopped doing sweeps after the last decision and told our people that if there were problems, there are other laws they could use to deal with them," said Toronto Police Service spokesman Mark Pugash. "We see little reason to change that."
However, York Regional Police Chief Eric Jolliffe said that his force "continues to be bound by the laws that exist today and our obligation is to uphold the law as it is now."
Prostitution activists hailed Monday's decision as a historic victory.
"Six out of six judges so far have concluded that the law does not work and is hurting people," said York University law professor Alan Young, the lawyer for the women who launched the constitutional challenge.
Valerie Scott, one of the litigants, said that prostitutes have a sense of belonging for the first time. "I feel like a debutante," she said. "I feel like a citizen."
Ms. Scott said that brothels have always existed in the shadows. "There is a brothel on every block in every city, and there always has been," she said.
Nikki Thomas, executive director of SPOC, told reporters that prostitutes will be normal citizens who file income taxes, purchase investments and quietly go about their work. "We are not going to have fire and brimstone and sex workers raining down from the sky," she said.
The Court of Appeal noted on Monday that Parliament is not precluded from enacting new prostitution laws provided they do not heighten the danger to prostitutes.
With reports from Karen Howlett and Anna Mehler Paperny