Prostitution is a high-risk “economic activity” that the law doesn’t force people into, and the best protection of sex-trade workers is not Parliament’s obligation, the federal government is arguing.
Ottawa has filed court documents indicating the positions it is taking in an appeal of a ruling striking down three key prostitution laws.
An Ontario Superior Court judge ruled last year that laws against keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade were contributing to the danger faced by prostitutes.
Justice Susan Himel said the laws violate the Canadian Charter of Rights and Freedoms by forcing prostitutes to choose between their liberty and their security.
In appealing that ruling to the Court of Appeal for Ontario, the federal government argues that under the law no one is obligated to be involved in prostitution.
“It is the practice of prostitution in any venue, exacerbated by efforts to avoid the law that is the source of the risk of harm to prostitutes,” government lawyer Michael Morris writes.
“Prostitution is not a fundamental life choice; it is an economic activity that carries high risks for all those who engage in it.”
Ottawa also argues the lower court erred in assuming that Parliament has an obligation to “minimize hindrances and maximize safety” for people in such activities.
“As a whole, the impugned laws are aimed at deterring prostitution because it is risky and dangerous,” Morris writes.
“In this case, the effect of finding a deprivation of security of the person by the court below is to impose a constitutional duty on Canada to minimize the risk of harm to individuals who flout these very laws.”
The federal government also asks the court that if it upholds the ruling striking down the laws, that an 18-month stay be imposed on it so Parliament can have time to fill the regulatory void that would arise.
While the Superior Court decision struck down the application of the law in Ontario, it remains to be seen if courts in other provinces will follow the Ontario decision. It is more likely they will await the outcome of this case, which could be taken all the way to the Supreme Court of Canada.
The ruling deals with adult prostitution offences and does not affect Criminal Code provisions involving people under 18.
The appeal is expected to be heard in June.
