Three Ontario Appeal Court justices indicated they do not accept the government’s rationale for maintaining restrictions on the sex trade, and may be open to upholding a 2010 Ontario Superior Court decision that found those restrictions threaten the security of prostitutes.

Last Fall, Justice Susan Himel threw out Canada’s restrictions on the sex trade – communicating for the purpose of prostitution, living on the avails of prostitution, and keeping a common bawdy house —  saying they violated the security of the person by forcing prostitutes to work on the streets and limiting their ability to screen clients.

Representing the federal government, lawyer Michael Morris said the purpose of the restrictions “is to discourage and deter people from engaging” in prostitution. In its factum, the government stated the restrictions “may influence the decision to practice prostitution by discouraging it, but they don’t force individuals to endanger themselves.”

In questioning Morris, Justice David Doherty said that restrictions on prostitution put hookers “at real risk and therefore those laws impact their security.” It was an implicit acceptance of Himel’s decision.

In Canada exchanging sex for money is not a crime. Doherty said that because prostitution is legal, the “bunch of laws” passed by Parliament, put prostitutes “at significant risk.” Doherty wondered “why it isn’t self-evident” that the laws surrounding prostitution make the sex trade riskier that it need be otherwise.

Justice Eleanor Cronk said that the government should remove impediments that increase the risk to prostitutes. But Morris maintained that the state had no obligation to provide a safe environment for prostitutes because the profession is not constitutionally protected. He said that the sex trade is a job that prostitutes enter knowing that it is unsafe.

Justice Jame MacPherson challenged Morris to “name one other legal occupation in Canada where the participants are prevented from doing things like hiring a bodyguard or a driver?”

Morris also argued that Himel entered into public policy areas that properly should be decided by Parliament, not the courts.

The government also filed affidavits from seven women who worked in the sex trade detailing the physical dangers and emotional damage that engaging in prostitution causes and which the state said was inherent in the trade, regardless of criminal restrictions. One prostitute identified in a sworn statement only as J.S., said the sex trade reduces individual women to a commodity: “It is violating to be reduced to body parts … but you pretend that you like it.” In another statement, a woman identified as “Dawn” wrote: “I felt as though my soul was being systemically murdered.”

The National Post, which favours full decriminalizing prostitution, wondered why the state would not ban prostitution outright if it were so deleterious to women.

The case was brought forth by dominatrix Terri-Jean Bedford, and representatives of the Sex Professionals of Canada, its executive director Nikki Thomas and legal co-ordinator Valerie Scott.

Bedford, who wears leather and brandishes a riding whip to the courthouse, condemned the government for not protecting women, calling Prime Minister Stephen Harper “a deadbeat dad.”

Bedford’s colleague Scott told the Toronto Star that it was “patronizing and paternalistic” to think that women need protecting from psychological harm, condemning a half dozen intervenors including REAL Women of Canada, the Christian Legal Fellowship and the Catholic Civil Rights League, but also the Women’s Coalition for the Abolition of Prostitution representing native women, female prisoners, and sexual assault centers.

Representing the trio of religious and social conservative groups was lawyer Ranjan Agarwal, who was challenged when he stated, “most reasonable people consider prostitution to be immoral.” Justice Marc Rosenberg said, “You’re losing me. Why is this relevant?” Agarwal said that the restrictions discouraged an activity most Canadians find abhorrent.

A decision is not expected until late 2011, and whatever the outcome most legal observers predict the decision to be appealed to the Supreme Court of Canada.

Scott says she hopes that the restrictions surrounding prostitution will be permanently stricken. She plans to attend business school and open her own brothel.