The Supreme Court of Canada asked government lawyers tough questions as they heard arguments for and against the law on prostitution. The federal Criminal Code provisions criminalizing brothels, pimping or “living off the avails” of prostitution, and communication to buy sex was struck down in 2010 by the Ontario Superior Court. In 2012, a 3-2 ruling by the Ontario Court of Appeal upheld the decriminalization of brothels and pimping as long as women were not being exploited by the pimps. The case was then appealed to the Supreme Court by the federal government.

During the Supreme Court hearing on June 13, Michael Morris, a federal government lawyer, argued that the court should defer to Parliament’s ban on the activities surrounding prostitution, which is an effort to stop female abuse as well as the negative effects of brothels on communities. Morris furthermore remarked that brothels do not eliminate violence and crime and the “economic activity” of prostitution should not outweigh the law’s purpose to prevent harm arising from the sex trade.

Alan Young, lawyer for dominatrix Terri Jean Bedford and two other prostitutes who first challenged the law four years ago, said that the Crown’s position that women are only safe if they leave the sex trade is “insulting” and “an ideological position.” He also brought up government reports suggesting that the current law is not effective and that striking it down would reduce harm to vulnerable women.

Jonathan Shime, a lawyer for the Canadian HIV/AIDS Legal Network compared the law on prostitution to banning Brinks security guards from protecting themselves and the money they are transferring. To him, a prostitute getting an agreement from a client to use a condom is the equivalent of a security guard being permitted to wear a bulletproof vest.

Chief Justice Beverley McLachlin commented that under current law, prostitutes cannot organize protection against pimps or clients. Two justices also said that Young’s clients are not particularly vulnerable or in need of protection. Yet Justice Michael Moldover brought up Robert Pickton, an example of a predator who killed a large number of prostitutes, to illustrate how restrictions on prostitution could endanger women.

“If prostitution is permitted, then it should be permitted in a home or a house,” said Justice Rosalie Abella, referring to the fact that prostitution itself is not illegal in Canada. “If it’s not, you’re criminalizing a legal activity. Does it prevent them from carrying on a legal activity in a safe way?”

Julia Beazley, policy analyst for the Evangelical Fellowship of Canada, wrote in the National Post that while Canada’s laws have failed to protect prostitutes, decriminalizing the practice has been an even bigger failure, increasing sex trafficking and not preventing crime or violence. She advocates for an approach similar to the Swedish law which decriminalizes prostitution but criminalizes the demand for their services: “This model recognizes the vast majority of prostituted persons are not for sale by choice. Sweden’s law focuses its punitive powers on the johns, the pimps and the traffickers.”

The nine Supreme Court judges are not expected to make a ruling until at least six months.