Last September, Justice Susan Himel of the Ontario Superior Court of Justice struck down three provisions in Canada's Criminal Code: living off the avails of prostitution; keeping a common bawdy house; and communicating in a public place for the purpose of engaging in prostitution, , in a series examining the local sex trade:

“These laws," wrote Justice Himel, "individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms." It was hailed as a breakthrough by those in the sex trade.

Until, that is, the federal and provincial governments appealed. A decision is expected this spring.

. . .

For , the 91��ɫ law professor [at Osgoode Hall Law School] who represented one of the sex workers in the superior court case, the communication section is "the least important aspect of the case."

"It was always about bawdy house," said Young. "The idea was to provide the safe house, a safe place to work. If anything is achieved by the case it's that. I also don't like living off the avails because it's overly broad."

In his years of fighting legal battles on behalf of sex workers, Young said he's discovered a flourishing underground economy — "you'd be surprised at some of these little businesses," he said — but even he doesn't have a handle on the number of workers across the country.

"Nobody knows," he said. "It's a very ill-defined profession."

Around the time of the fall ruling, Prime Minister Stephen Harper said prostitution was "bad for society."

Young describes the federal government's appeal of the ruling as "knee-jerk" and "ideologically driven." He's outspoken in his hope that by the time the ruling is given, the current government will have lost a spring election.

91��ɫ Research covered Young's involvement in the ; Osgoode Hall students also in the ruling.

Posted by Elizabeth Monier-Williams, research communications officer, with files courtesy of YFile – 91��ɫ’s daily e-bulletin.

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Justice Susan Himel struck down all three Criminal Code provisions that had been challenged – communicating for the purposes of prostitution, pimping and operating a common bawdy house.

The decision will take effect in 30 days unless Crown lawyers return with arguments that are strong enough to persuade her to grant a further delay, Judge Himel said.

“We got everything,” yelped a 91��ɫ law professor behind the challenge, of , as he scanned the judgment seconds after it was released. “We did it.... Finally, somebody listened.”

Judge Himel specifically rejected a request from the Crown to suspend the effects of her decision for 18 months on the grounds that doing so would force sex-trade workers to continue working under hazardous conditions. She said the 30-day delay gives the Crown one last chance to persuade her that she should suspend her judgment.

Young said that, in light of how uncompromising Judge Himel’s findings were, the Crown faces a tough uphill battle in obtaining an additional stay. “In 30 days, the ruling kicks in and people can start growing their businesses,” he said.

Regardless of whether or not the decision is appealed, it is likely to plunge Parliament back into a divisive debate over criminalizing the operation of an activity that is itself perfectly legal.

Young warned the press and public not to fall for an inevitable onslaught of misinformation and scare stories that government officials will issue as it bids to prop up the law. “This was a big bite out of the heart of government,” he said. “They are going to feel this one. I don’t know what this means now; whether or not we will see five-storey brothels like the ones in Germany.”

However, Young also said that the public need not fear that prostitutes and pimps are about to run amok in their communities. Nor, he said, should people allow any distaste they may have for prostitution to cloud the central issue in the case. “This case is all about protecting the security and safety of people working in the sex trade, regardless of what you think of sex-trade work,” he said. “We have had a moral aversion to the sex trade for hundreds of years, but any time you can do something that increases peoples’ safety, you have done something good.”

Both sides in the case spent years amassing a vast body of international evidence, including dozens of witnesses.

Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to license body-rub establishments despite the general understanding that many sell sexual services.

Young ridiculed them on Tuesday for hypocritically reaping licensing fees while pretending not to know that they are fronts for prostitution. “For a decade, they have been charging exorbitant licensing fees for rub-and-tugs,” he said. “Now, at least we won’t have to charge them with living off the avails.”

Young was also interviewed in the Globe about the Pickton trial context for this challenge Sept 29:

A historic challenge to the country’s prostitution laws would likely have failed without the backdrop of serial killer Robert Pickton’s murderous activities, according to the lawyer behind the case.

Osgoode Professor Alan Young said Tuesday that he purposely delayed his challenge until after the Pickton trial because there could scarcely be a more dramatic illustration of the plight prostitutes are placed in when the law forces them to work on the streets.

“Pickton brought it to light,” Young told a press conference. “I had been developing arguments for many years, but I needed something more. Facts drive a case, and when they started to find bodies on that pig farm in 2002, it became extremely apparent to everyone that it is dangerous for sex-trade workers to work on the street.”

He characterized the prostitution challenge as a David and Goliath battle fought by a small band of lawyers who worked pro bono, 20 91��ɫ University law students and three tenacious litigants.

Over a five-year period, he said that his team assembled dozens of boxes of evidence and persuaded a sizable group of academics, community workers and prostitutes to testify without payment.

A win at the trial level was critical since the litigants and their legal team would not have been able to obtain funding for an appeal otherwise, Young added.

The case was also covered on , , the , , , , , and , among others.

You can stay current on this developing story by .

Posted by Elizabeth Monier-Williams with files courtesy of YFile – 91��ɫ’s daily e-bulletin.

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