TORONTO (Reuters) - Ontario's highest court has struck down a national law that outlaws brothels but upheld an effective ban on street prostitution, a partial victory for those arguing Canada's laws put sex workers in harm's way.
If the landmark decision stands - it will likely be appealed to the Supreme Court of Canada - the federal government will have to find new ways to regulate prostitution, perhaps by accepting legalized brothels of the sort found in Nevada.
Accepting money in return for sex is not illegal in Canada, but most related activities have been.
In a judgment released on Monday, Ontario's Court of Appeal found the laws violated the constitutional rights of sex workers by preventing them from taking safety precautions such as hiring bodyguards or working out of their own homes.
In hearings last June, the federal and provincial governments argued that it is prostitution itself, not the laws that govern it, that put prostitutes at risk.
"Prostitution is a controversial topic, one that provokes heated, heartfelt debate about morality," the court wrote in its opinion. "It is not the court's role to engage in that debate."
But the court's ruling was only a partial endorsement of Justice Susan Himel's 2010 ruling that had found all three laws unconstitutional.
A narrow majority on the panel upheld a law that primarily restricts street prostitution, banning public communication to buy or sell sexual services. In a dissenting opinion, two of the five judges found that law unconstitutional as well.
Monday's ruling struck down a law against keeping a "common bawdy house," and said a rule against living off the proceeds of someone else's prostitution should apply only to "circumstances of exploitation."
The change could make it possible to continue prosecuting violent pimps while allowing prostitutes to hire bodyguards.
COURT SAYS PARLIAMENT CAN RESPOND The court stayed its decision on the "bawdy house" provision for 12 months, and the provision on living off the proceeds of someone else's prostitution for 30 days. "While we have concluded that some aspects of the current legislative scheme governing prostitution are unconstitutional, it remains open to Parliament to respond with new legislation," it said.
The government is reviewing the decision and its legal options, said Julie Di Mambro, spokeswoman for Attorney General Rob Nicholson in an email.
"As the prime minister has said, prostitution is bad for society and harmful to communities, women and vulnerable persons," she said. "We continue to see a social need for laws to control prostitution and its effects on society."
Alan Young, a law professor at Toronto's prestigious Osgoode Hall Law School, challenged the laws on behalf of two former and one current prostitute.
Carissima Mathen, a law professor at the University of Ottawa, said it is significant that the dissenting judges were in favor of more legalization, not less.
"I think it's actually a pretty big vindication for the plaintiffs and also for the trial judge," she said of the judgment overall. "It's a little bit of a mixed bag legally, but the analysis largely upholds what Justice Himel did."
Mathen said five Court of Appeal judges backing much of Himel's analysis - which was based on 25,000 pages of evidence and took almost a year to write - should carry some weight with the Supreme Court.
The case is Canada (Attorney General) v. Bedford, 2012 ONCA 186.
Additional reporting by Randall Palmer; Editing by Frank McGurty