06/13/2011 03:56 EDT | Updated 08/13/2011 05:12 EDT

Prostitution Case At Ontario Court Of Appeal Sees Judges Grill Federal Lawyers On Sex Trade Dangers


THE CANADIAN PRESS -- TORONTO - A five-judge Appeal Court panel held the federal government's feet to the fire Monday, grilling its lawyer about an assertion that prostitution laws aren't putting sex workers in danger.

The Court of Appeal for Ontario is hearing a major case this week that could see prostitution effectively decriminalized.

An Ontario judge last year struck down the laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade. Superior Court Judge Susan Himel found the laws were contributing to the danger faced by prostitutes, forcing them to choose between their liberty and their safety.

Sex-trade workers argue the laws prevent them from working indoors where it's safer, taking time to talk to a potential client to assess the risk they pose and hiring bodyguards.

The federal and Ontario governments are appealing Himel's ruling, arguing there is no obligation to maximize the safety of prostitutes, because it is not a constitutionally protected right to engage in the sex trade.

Ottawa's lawyer, Michael Morris, argued that prostitution itself is dangerous and the harms are posed not by the laws, but by violent pimps and johns. Morris had a tough go in front of the judges Monday as they closely scrutinized and at times appeared incredulous at the government's claims.

"I find it hard to understand why it's not self-evident that these provisions harm the ability to carry out prostitution safely," said Justice David Doherty. "These are things that just as a matter of common sense make the business of trading sex safer."

Justice James MacPherson asked if Morris could name any other legal occupation in Canada -- prostitution itself is not criminalized, though many of the key activities are -- in which people are prevented by law from taking basic steps to protect themselves.

Morris started talking about drug dealers, but MacPherson stopped him.

"Drug dealer?" the judge said. "That's illegal. Prostitution is legal."

Doherty suggested it was akin to making it illegal for a convenience store owner to hook up security cameras.

The case is scheduled all week, and in addition to arguments from the two levels of government and the sex-trade workers who launched the challenge, the court will hear from seven interveners, representing 19 groups arguing for and against the laws on the basis of everything from morality to abortion to the spread of HIV.

What the case comes down to is whether or not these laws contribute to harms sex-trade workers face, Morris said.

"That's the heart of this issue," he said. "That's the only issue."

The laws don't facilitate or contribute to violence against prostitutes, rather the laws seek to protect them, Morris said. Any connection between the laws and harm is "too remote to be said to be contributing to the harm," he said.

MacPherson said, "What's remote about getting beaten up . . . because you don't have a bodyguard?"

The violence that a prostitute suffers come from multiple factors, none of which relate directly enough to the laws to justify striking them down, Morris said.

"This is a violent world," he said. "The law can't be held responsible for tenuous connections."