Canada’s anti-prostitution laws are being challenged by a prostitute, a former prostitute and a dominatrix, who argue that decriminalizing bawdy houses and scrapping the law prohibiting living off the avails of prostitution will make the sex trade safer for women. Countering the sex trade activists, the Ontario and federal governments have been joined by REAL Women of Canada, the Christian Legal Fellowship and the Catholic Civil Rights League in defending the current law, saying that making prostitution fully legal will not protect vulnerable women.

REAL Women, CLF and the CCRL were originally denied intervener status in the case by Justice Ted Matlow of the Ontario Superior Court, but on Sept. 22, the Court of Appeals in a 3-0 decision by judges Stephen Goudge, Eleanore Cronk, and Gloria Epstein said Justice Matlow was in error in dismissing the moral argument the interveners would present.

Derek Bell, a lawyer for the three intervening groups, said they “can make a useful contribution to the proceeding” by representing the community’s view that prostitution is immoral.

Val Scott, a prostitute challenging the law, said prostitution opponents have “a displaced sense of morality” and it is “time for Canada to get over it.”

Diane Watts, a spokesperson with REAL Women, told The Interim that “there is a clear moral dimension” to the issue, because it raises questions about human dignity – the buying and selling of human beings. “Selling one’s body to another diminishes the human dignity of the person,” Watts explained.

Alan Young, a law professor at Osgoode Hall Law School, a lawyer for the challengers, said the inclusion of women’s and religious groups will only “confuse and distract the judge into thinking the case is about the morality of sex work.”

Young spoke against the “old and tiresome moral argument that was used in previous centuries” against prostitution. He claimed the case should focus narrowly on reducing the threat to women’s lives and security that is part of street prostitution. He said permitting women to organize, hire security and operate indoors would protect women from violence, robbery and rape, as well as reduce sexually transmitted infections. Young wants to treat the decriminalization of prostitution as a workplace health and safety issue.

Legal experts quoted in the media have said the issue before the Ontario courts now is whether prostitution conducted indoors (in bawdy houses) is safer than street prostitution. Young, like many media pundits, points to cases of serial killers like Robert Picton in British Columbia and Gary Ridgway in Washington state, who targeted prostitutes because they were often isolated and vulnerable.

REAL Women’s Watts said prostitution is inherently a high risk behaviour and jurisdictions that have decriminalized prostitution have not solved the problems of child prostitution, violence against sex workers, or human trafficking. She said studies have shown “an increase in all types of prostitution (when it is legalized), both legal and illegal. Child prostitution increases. Human trafficking increases.” A study of prostitution in Spain, where it is legal, found fewer than one in 10 prostitutes was from the country and that most were from Eastern Europe and Africa. “It opens the door to the trafficking of poor women from poor countries,” Watts said. “It is modern slavery. It is exploitation.”

Michael Morris, counsel for the attorney-general of Ontario, told the Ontario Superior Court  that there is no such thing as a safe place for prostitution because of the physical and psychological harm inherent in the act itself. Morris noted: “No one’s security is in danger by following the law.”

Morris told Justice Susan Himel that while street prostitution is unsafe, “that doesn’t mean the indoors is safe.” Presenting affidavits from 19 prostitutes who say prostitution is never a safe profession, Morris quoted one affidavit in which a prostitute said, “Any time you are alone with a john (client), it is dangerous.” Another said that according to her experience of working indoors, when a prostitute screams, no one comes to help.

Don Hutchinson, director of the Centre for Faith and Public Life, told The Interim that while the law may need amending to better protect prostitutes, decriminalizing prostitution is not the answer.

He rejected the harm reduction arguments of the litigants and their lawyer Alan Young, saying taking sex workers off the streets and putting them indoors creates a “hiddenness of the vulnerable and those who seek to abuse them.”

He added Canada should address root causes of poverty, addiction and isolation, rather than permit prostitution.

Hutchinson said Ottawa might consider the approach of Sweden, which considers pimping and the purchase of sexual services by (male) johns as criminal acts, but not the sale of sexual services by (female) prostitutes. Using such an approach permits government authorities and non-governmental agencies to engage vulnerable women without the threat of criminal prosecution. Hutchinson described the current laws as ones that “punish and re-victimize women and young boys and girls” who are often struggling with social and psychological issues.

Feminist law professor Janine Benedet of the University of British Columbia wrote in the Globe and Mail that moving prostitution indoors “does nothing more than keep the abuse private and the abusers mostly anonymous.” Applying a feminist perspective to the issue, she said that decriminalizing prostitution does not address the sexist and violent attitudes of many male clients, but rather “officially confirms” the belief that “he was entitled to use her body until he was satisfied.” She said Canada needs tougher laws to abolish prostitution, rather than normalize it.

Watts also said prostitution is not a victimless crime. Even without the aspect of human trafficking, it affects families – both the families of prostitutes who often grow distant from their relatives due to the shame of their profession or become addicted to drugs and the families of clients who betray their spouses and children through marital infidelity.

The Calgary Herald editorialized that prostitution is so “sordid, dangerous and immoral” that Parliament should maintain restrictions on the practice by invoking the notwithstanding clause of the Constitution if the courts strike down the law.

In a 1990 reference case, the Supreme Court upheld Sections 193 and 195 of the Criminal Code, which prohibits street solicitation (communication for the purpose of soliciting a prostitute) and bawdy houses. Along with those two provisions, living off the avails of prostitution is illegal, although the actual act of paying for sex is not.