The Court heard arguments June 13 on whether laws restricting prostitution violate the Charter rights of prostitutes. Though prostitution itself is legal, several aspects surrounding it are not.
Retired dominatrix Terri-Jean Bedford and former sex workers want the Supreme Court to strike down laws governing solicitation, keeping a common bawdy house and living off the avails of prostitution. Their lawyers contend the current law violates a Charter right to security of the person because it prevents prostitutes from legally hiring a body guard, working out of their homes or effectively screening customers for safety or health reasons.
The Catholic Civil Rights League, REAL Women of Canada and the Christian Legal Fellowship intervened jointly to argue for the legitimacy of morality-based laws against prostitution.
“Morality is a constitutionally valid legislative purpose,” the groups’ attorney Robert Staley told the court. “The abhorrence of prostitution is a shared value.
“The commercialization of sex is something Parliament is entitled to legislate upon. Most criminal laws reflect a moral purpose.”
However, Chief Justice Beverley McLachlin said taking morality into consideration when Parliament drafted the prostitution laws “does not render it legitimate.” She noted efforts to link morality to perceived harm. “We have been quite careful about not using morality as a stand-alone.”
Justice Rosalie Abella asked whether the fact that a law has a moral purpose keeps the court from examining whether morality has changed. “To what extent do you see us encased in that moral purpose?”
“I can’t say there is a new and different purpose,” said Staley. “What morality means and how it applies can change over time.” But he pointed out that even after Parliament updated its view with more modern language the disapproval was still there.
The Evangelical Fellowship of Canada (EFC) argued against striking down the laws on the basis of human dignity. “The concept of human dignity underlies many rights and freedoms of the Charter,” attorney Georgialee Lang told the court. Prostitution is based on “the historical subordination of women” and men’s ability to buy and sell women and constitutes an “assault on human dignity,” she said. Canada has historically rejected exploitive behaviour, she said, but legalizing prostitution would “reverse” that trajectory. “Human trafficking flourishes in countries where trafficking is legalized,” she said.
Attorney Alan Young, arguing for Bedford, called the EFC’s arguments a combination of mythmaking, fear mongering and a return to the Victorian era. “What we have here is a moral panic,” he said.
“The legality of prostitution must be recognized, regardless of whatever one’s personal views are on the subject,” said Young.
Lang said evidence from countries that have legalized prostitution disputes the notion that legalization decreases the harm. The Netherlands sex industry increased by 25 per cent and child prostitution increased dramatically there, she said. In Australia’s Victoria state, legalization did not eliminate criminal behaviour, violence or street prostitution, nor did the legal change “dignify or professionalize” sex workers, she said. “Legalization has led to a massive expansion, mainly in the illegal sector.”
Alongside legalized brothels are hundreds of unlicensed brothels, she said. Legalization does not empower prostitutes, she said. Those underage, or with drug addictions or homeless do not qualify to work in licensed brothels but continue to sell sex, she said.
Though Canada’s laws do not criminalize prostitution itself, they criminalize acts around it to “make sure prostitution is not viewed as an acceptable or legitimate enterprise,” she said, also noting the courts must determine whether the limits imposed on the Charter right are reasonable and justified.
“They are reasonable in light of the significant human rights violated in the legalization of prostitution and the plague of human trafficking,” Lang said. “The harms that will occur from striking down the legislation are disproportionate to the harms those countries that have legalized it are experiencing.”
Young said not all sex workers fit the stereotype of the marginalized, drug-addicted street worker. “Strong independent sex workers don’t fit the stereotypes,” he said.
Parliament does not have to allow all forms of prostitution or have streets cluttered with bawdy houses, Justice MichaelMoldaver said. “Why should Parliament have to open up the street to everyone having a bawdy house and cars coming at all hours of the night.”
Attorney Janine Benedet, arguing on behalf of the Canadian Association of Sexual Assault Centres and other groups, said existing laws could be revised to continue to criminalize the johns and the pimps while not criminalizing the women, she said.