TORONTO (Reuters) - Canada's anti-prostitution laws violate the country's constitution because they prevent sex workers from taking steps to keep themselves safe, lawyers for prostitutes argued this week in an Ontario appeals court.
Accepting money in return for sex is not illegal in Canada, as it is in most of the United States. But most related activities, such as communicating for the purposes of prostitution, are illegal, and the government wants to keep it that way.
It is appealing a lower court decision that struck down key provisions of the federal laws in Ontario on the grounds that the provisions put sex workers in danger. The government argued that it is prostitution itself, not the laws, that endanger prostitutes.
"The court below erred in assuming that an individual is entitled to engage in prostitution," the federal government, backed by the province of Ontario, argued in written submissions to the court.
The pith of the federal argument is that it is not Parliament's responsibility to ensure the safety of people who break the law while doing so.
Justice Susan Himel's lower court ruling in September declared that restrictions on operating a common bawdy house, communicating for the purposes of prostitution or living off its avails put prostitutes in harm's way.
She said the laws made it illegal for them to hire a body guard or verbally "screen" for violent johns before stepping into a car.
"You can't communicate," said law professor Alan Young, who challenged the law on behalf of three current or former sex workers. "So you're basically told by the law that when you're going to do street prostitution the law requires you to jump in the car without talking."
Himel had written that the laws are meant to reduce public nuisance, but the government countered that they should instead be assessed against a broader objective, to reduce individual and community harm by deterring prostitution in general.
Ranjan K. Agarwal, arguing on behalf of a coalition of Christian and conservative groups, went further, suggesting that Canadians discussing the case on Twitter and Facebook were focused on the basic immorality of prostitution.
"This court can come to the conclusion that prostitution is immoral," he told the panel of five justices.
Canada's prostitution laws have already survived one major constitutional challenge, in 1990. Then the Supreme Court found that the communication law was a reasonable restriction on free speech, and that the law's indirect approach to prostitution was not too vague or inconsistent.
Young pointed to the disappearance and murder in the 1990s of prostitutes from Vancouver's Downtown Eastside by, the world would later learn, serial killer Robert Pickton. In response to the disappearances, some local sex workers rented a house -- Grandma's House -- where they hoped they and their peers could work in relative safety.
Before long, one of the founders, Jamie Lee Hamilton, was arrested under the bawdy house law.
"That's not women banding together to create some sort of commercialized brothel," Young said in an interview after the hearing. "That was a bona fide effort to preserve safety and security, and yet the law would not permit it."
Janine Benedet, representing a coalition of women's groups that oppose decriminalization, argued in court that Pickton's case actually proves "screening" does not work, because Pickton was a well-known john before he was arrested.
She reminded the court that women are most likely to be victimized by the men they know best, including "the men they screen all the way to the altar". Decriminalizing prostitution would put most sex-trade workers in greater danger by reducing the legal risk faced by men who exploit them, she said.
The court's decision is not expected until the fall at the earliest, and would be expected to be appealed to the Supreme Court of Canada. The case is Bedford, Terri et al v. The Attorney General of Canada, Nos. C52799 and C52814.
Editing by Randall Palmer and Peter Galloway