Article Link: CTV Ottawa

Updated: Sun Jun. 12 2011 8:54:07 PM

CTV.ca News Staff

Canada's sex trade will be back in the spotlight this week, as the Court of Appeal for Ontario hears a landmark case that could decriminalize prostitution in the province and set a precedent countrywide.

Last year, Ontario Superior Court justice Susan Himel struck down three key anti-prostitution laws -- communicating for the purposes of prostitution, living on the avails of prostitution and operating a brothel or a bawdy house -- opening the door for decriminalization of the industry.

But the ruling was put on hold pending an appeal by the federal and Ontario governments set to be heard by five justices over the course of five days this week.

As CTV legal analyst Steven Skurka explained in an interview with News Channel on Sunday, the argument hinges on whether current laws violate the Canadian Charter of Rights and Freedoms by forcing sex workers to choose between their liberty and their security.

"There's no question that it's dangerous work," Skurka said. "The question is whether these laws create that danger."

Arguing to strike the current laws, the Canadian Civil Liberties Association says it's wrong for the law to try to mitigate whatever risks are associated with prostitution, because other jobs that carry inherent risks are not subject to such restrictions.

"Even assuming that prostitution is inherently harmful, as the (governments) allege, this does not change the fact that the risks of physical violence against persons engaged in prostitution are increased by the impugned provisions," the association argues in court filings.

"It would be unconstitutional for the state to prohibit taxi drivers or airline pilots or police officers from taking basic precautionary measures to protect their personal security," the group says.

The B.C. and The Canadian and B.C. civil liberties associations, as well as a coalition of HIV/AIDS groups and several groups representing sex-trade workers, are among a total of 19 groups represented by seven interveners slated to argue the case before the court this week.

AIDs groups argue that a combination of the existing laws, sex workers' financial needs and their vulnerability to violence mean they can do little to argue with clients who refuse to use condoms, while sex worker groups say legislation infringes on their right to make personal decisions regarding their bodies.

Others, however, see the business and its relationship with the Criminal Code very differently.

According to a coalition of women's groups including the Canadian Association of Sexual Assault Centres and the Native Women's Association of Canada, making prostitution legal would only serve to protect the clients of prostitutes, "no matter how coerced, destitute or ill."

"It would be illogical and contrary to principles of fundamental justice to decriminalize men's prostitution of women in order to protect women from those same men," they write.

And a religious group that includes the Christian Legal Fellowship and the Catholic Civil Rights League sees the issue from another perspective altogether.

"Prostitution is disapproved of by every major religion. The position advanced by the interveners is not a fleeting view of a prudish minority or legal moralism," they argue. "If Justice Himel's decision is upheld, all members of society will likely be exposed to the effects and abuses of regularly practised prostitution and its indecencies."

For its part, the federal government will argue that prostitution is a "high-risk" activity that no one is obligated to engage in, and no government is obligated to protect.

Decisions rendered by the Ontario Court of Appeal would only hold sway in that province, but in Skurka's view, the case is unlikely to end there.

"I think this was a bold and courageous decision by this judge in Ontario," he said, suggesting there is a "very compelling case" that prostitutes compelled to ply their trade on the streets are in fact putting their lives at risk.

"It inevitably will go to the Supreme Court of Canada," he added, confident in his prediction the Court of Appeal will uphold the prior rulings.

Then it will remain to be seen whether courts in other provinces follow the Ontario precedent.

As it stands, the case only deals with adult prostitution offences and does not affect Criminal Code provisions involving people under 18.

With files from The Canadian Press