Overall, the nine justices seemed reluctant to endorse the perspective put forward by the governments of Canada and Ontario. Naturally, it doesn’t make a great deal of sense to put too much weight on this, since it is, in fact, the job of justices to take lawyers to task.
Much of the argument revolved around Section 7 of the Charter of Rights and Freedoms, which accords to each Canadian “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
This principle was linked most clearly, and interestingly, to the degree of choice exercised by anyone engaging in the practice of prostitution.
The hinge was: if someone makes the conscious decision to engage in sex work — knowing full well that there are laws criminalizing its practice, and that might endanger this person — can the sex worker then proceed to complain that the government has deprived them of this fundamental right?
The government’s opinion seemed to be “no.”
In sum, Justice Cromwell suggested that this was tantamount to there being a law preventing helmets while riding a bike, and then complaining that riding a bike was unsafe. He asked a lawyer whether or not this meant that the appropriate action for the citizen was to not ride a bike.
“Yes,” was the answer.
Chief Justice McLachlin, speaking to one of the challenged provisions, which criminalizes “living off the avails of prostitution” said, “What this prevents is a group of prostitutes hiring a company to provide security … could be Brinks or somebody.”
(She also hedged slightly, noting that Brinks probably doesn’t do this type of security.)
The question of these choices was further detailed by Justice Abella, who was the most overtly hostile towards the government. She questioned whether or not personal choices could mean that there is an unequal protection under S. 7 of the Charter. In that sense, because someone willingly chose a risky activity or job (ie. sex work) they would not be entitled to as staunch a level of Charter protection, should harm arise from that activity.
McLachlin also challenged the proposition that restrictions on prostitution were similar to those put on other “vices” such as alcohol and gambling.
“When you cut through the rhetoric … the limits on gambling and alcohol aren’t injurious,” she said.
To my eye, the government lawyers genuinely appeared to be on the run. There were one or two favourable (or low ball, perhaps) questions that were fielded. But, in many instances, they were unable to point to examples of where the trial judge (Justice Susan Himel of the Ontario Superior Court) had erred, and could not adequately explain the justifications for the laws.
What justification there was, in many instances, appeared to be about “nuisance” posed by sex work — namely, that brothels would attract cars at all hours, clients coming in and out, and potentially disturbing other residents or businesses. This is the same argument that justified the communication provision of the Criminal Code, because street workers are presumed to attract drugs, johns, litter, and that there might be harassment of passersby.
Whether or not this is a compelling argument remains to be seen, but it did seem to be a strain that ran through the responses given by government lawyers.
The strongest defence that was put forward — if you can call it that — was to call into question some of the evidence that weighed in favour of decriminalization. They argued that there is evidence that working in a bawdy house also isn’t necessarily safe, and pointed out that the avails provision helps police catch pimps and traffickers.
All these things may be true, but, that’s why the Court’s decision hinges on whether or not these laws are proportional, and is there a great deal of overreach, where others could be caught in the legal dragnet, and whether or not the harm done by the provisions is justified against the harm they aim to prevent.