A Canadian Charter challenge like no other!

PROSTITUTION
Sex Workers set to launch landmark Challenge
Criminal Code Rules violate Charter rights to safety, they argue
October 5, 2009
TRACY TYLER
LEGAL AFFAIRS REPORTER Dominatrix Terri-Jean Bedford, 49, left, was beaten with a baseball bat when she was a street hustler. Valerie Scott, 51, says danger would be minimized if sex workers operated from home. Osgoode Hall law professor Alan Young is representing Bedford. [MIKE SLAUGHTER/FILE PHOTO (left), FRANK GUNN/THE CANADIAN PRESS FILE PHOTO (centre), ANDREW WALLACE/TORONTO STAR FILE PHOTO]

If she could do it herself, Terri-Jean Bedford would strike down Canada's prostitution laws, perhaps using the riding crop she plans to bring to court.

Instead, the Toronto dominatrix and two other sex workers have launched a sweeping constitutional challenge to the legislation, arguing it perpetuates violence against women.

The landmark case gets underway Tuesday in a University Ave. courtroom where Bedford, in a nod to traditionalism, is promising to arrive conservatively attired, even if she is packing a tool of her trade.

"You never know when you might run across a naughty boy, or a naughty judge," she teased in an interview.

The 49-year-old Toronto grandmother, along with prostitutes Valerie Scott, 51, and Amy Lebovitch, 30, is asking Ontario's Superior Court of Justice to invalidate Criminal Code provisions that serve as Canada's policy response to the world's oldest profession.

They argue that prohibitions on keeping a common bawdy house, communicating for the purposes of prostitution and living on the avails of the trade force them from the safety of their homes to the insecurity of the street, where they are exposed to physical and psychological violence.

But the women are battling a fortress of opposition from the federal government, as well as religious and conservative groups intervening in the case.

The intervenors contend that loosening restrictions on the sex trade would be out of step with Canadian moral values.

The federal government, meanwhile, argues that prostitution is inherently dangerous, regardless of where it is practised. As part of their case, lawyers for the Attorney General of Canada are also relying on affidavits from police experts, who predict Canada will become a "sex tourism" destination if prostitution-related offences are decriminalized.

Prostitution itself is not illegal in Canada, but almost everything associated with it is, a situation that one judge of the Supreme Court of Canada once acknowledged as "bizarre."

It's the first time in a generation the legislation has been attacked.

"The one thing I can tell you from looking at this, both as an academic and as a person constructing a case, is that we have not had a really rational discourse on this topic because political ideology, emotional reactions and stereotypical thinking have dominated," said Alan Young, an Osgoode Hall Law School professor who is Bedford's lawyer.

Despite her propensity for playful banter, Bedford, who grew up in Collingwood, takes the issues seriously.

She still bears scars from being hit on the head with a baseball bat by a customer during her street-hustling days.

Statistics Canada has categorized the sex trade as an "at risk" occupation, in the same league as police work and taxi driving. Since 1991, 73 prostitutes have been recorded as having been killed while working. In affidavits filed with the court, Bedford, Scott and Lebovitch say they can minimize the danger by taking their business inside, where they can employ safety measures such as the use of security guards and monitoring devices.

But if they do so routinely, they risk criminal prosecution for operating what amounts to a brothel.

Bedford's "Bondage Bungalow" in Thornhill was raided by police in 1994 and she was convicted of keeping a common bawdy house in 1998.

The women are asking the court to declare legal restrictions on their activities a violation of their rights to security of the person and freedom of expression under the Charter of Rights and Freedoms.

A somewhat narrower legal challenge to prostitution laws came before the Supreme Court of Canada in 1990.

The court dismissed a challenge to the bawdy house provision and ruled the "communications" prohibition was a justifiable limit on freedom of expression, since it is meant to discourage the nuisances of street prostitution and related activities, such as drug trafficking.

But Bedford, Scott and Lebovitch argue that evidence never considered by the Supreme Court, including the work of a 2006 Parliamentary committee, shows the law has done little more than shift prostitution from one neighbourhood to another, in response to police sweeps. In recent years, the industry has been transformed, with technologies such as cellphones and Craigslist leading to a massive increase in indoor prostitution, Crown counsel Michael Morris and a team of federal lawyers note in their material.

But there is no sharp dividing line between indoor and outdoor work because many prostitutes move between venues, they contend.

Most charges, they say, are laid in connection with street soliciting. Over a one-year period ending in March 2006, there were 659 convictions in Canada for communicating for the purposes of prostitution, but just 114 bawdy house convictions and 14 convictions for living on the avails of prostitution, an offence meant to target pimps.

Evidence in the case is expected to consist almost entirely of affidavits from 56 individuals, including sex workers, academics, police officers and NDP MP Libby Davies (Vancouver East), whose riding includes the Lower East Side.