A prostitute works the streets of Vancouver's downtown Eastside in 2009.JOHN LEHMANN
Sex-trade workers voluntarily enter a world known for violence, drugs and death, the federal government will argue at a June showdown over the embattled prostitution laws.
In a legal brief filed with the Ontario Court of Appeal, government lawyers argue that the state does not owe prostitutes a promise of safety if they choose a profession that is fraught with danger.
"The law does not oblige individuals to engage in an activity that could risk their security," it states. "It is the practice of prostitution in any venue, exaggerated by efforts to avoid the law, that is the source of the risk to prostitutes."
The historic test case has burgeoned into a five-day appeal that will be heard by a specially convened panel of five judges. They will decide whether Ontario Superior Court Justice Susan Himel was correct last year when she struck down the laws governing pimping, keeping a brothel and communicating for the purposes of prostitution.
The federal brief insists that Judge Himel was wrong to suggest that individuals are entitled to engage in prostitution, and that Parliament "is not obliged to minimize hindrances and maximize safety for those that do so contrary to the law."
However, sex-trade workers and advocates who argued for the law to be struck down maintain that since prostitution is legal, it is dangerously hypocritical to make it impossible for sex-trade workers to operate in safety.
In her judgment, Judge Himel agreed with them. She said that laws set up to protect prostitutes endanger their safety, forcing them to engage in hasty transactions conducted in shady locations.
Last fall, Court of Appeal Justice Marc Rosenberg stayed the effect of Judge Himel's order until April. The stay was recently extended until the hearing in June.
Alan Young, a law professor who succeeded in having the prostitution law struck down, said that he agreed reluctantly to the extension.
"Justice Himel agreed with our argument that these laws endanger women, so in principle we are fundamentally opposed to the idea of allowing this law to continue in force by agreeing to a stay of judgment," Prof. Young said in an interview.
"However, with our limited resources we need to pick our battles," he said. "It is far more prudent to put our energy into preparing for the June appeal so that we can get rid of this bad law forever, instead of fighting over a stay which will only decide whether this law should continue in force for the next two months."
The appeal has attracted a collection of would-be intervenors who are scheduled to argue Friday that they should be included in the appeal hearing. They include the Canadian Civil Liberties Association, the B.C. Civil Liberties Association and the Canadian HIV/AIDS Legal Network.
Two other organizations that work with hundreds of sex-trade workers - Maggies: Toronto Sex Workers Action Project; and Prostitutes of Ottawa/Gatineau Work Education and Resists (POWER) - argue in legal briefs to the court that they ought to be included since they alone actually represent the people most affected by the laws.
Maggie's position is that "all consensual sex work is legitimate," the brief said. "The criminalization of prostitution, in all of its forms, creates barriers to health, safety, status and social well-being for women in the sex trade.
"Indoor work sites are the most economically viable and secure sites for women in the sex industry," it added. "There are few other legal professions, if any, where individuals are forced to choose between their physical well-being and legal status."
Lawyers for POWER maintain that personal autonomy is at stake.
"POWER will argue that the challenged laws interfere with sex workers' ability to make fundamental choices in respect of their bodies and their employment, the latter being an essential component of a person's identity, personal dignity, self-worth and emotional well-being," its brief said.
The group argued that prospective intervenors who support the laws insist on "moralizing" about how prostitution is sinful and amoral.
"POWER's view is that there is nothing inherently degrading about sex work," the brief stated. "It is the criminalization and stigmatization of sex work that has diminished the dignity of the trade."
The federal brief insists that the prostitution laws survived a challenge in a 1990 reference case that ruled out reconsideration of its constitutionality.
It also argued that prostitution harms communities by attracting the drug trade and underworld characters. "People no longer feel safe in their neighbourhood, children are exposed to johns, pimps and prostitutes, and to the public display of sex for sale," it said.
The government disputed an argument that decriminalization would get prostitutes off the streets and into regulated brothels, where they could practise their trade in relative comfort and safety.
"The police, experiential and expert evidence was that prostitutes are physically at risk regardless of the venue of the initial encounter with the john, or the location in which the act of prostitution takes place," the brief said.