Path cleared for religious organizations, conservative women’s group to support the laws at constitutional challenge
Kirk Makin / Globe and Mail / Wednesday, September 23rd 2009
An Ontario judge was wrong to prohibit two religious groups and a conservative women’s group from supporting the country’s prostitution laws at a coming constitutional challenge, the Ontario Court of Appeal said Tuesday.
In a 3-0 ruling, the appeal court said that the groups have a legitimate contribution to make to an issue that has a clear moral dimension.
It ruled that Mr. Justice Ted Matlow of the Ontario Superior Court misunderstood the case and used flawed reasoning when he concluded that groups would be out of place making moral arguments during the trial.
The groups were the Christian Legal Fellowship, REAL Women of Canada and the Catholic Civil Rights League.
Scheduled to begin next month, the challenge was launched by three activists connected to the sex trade – Terri Jean Bedford, Amy Lebovitch and Valerie Scott. They want the court to strike down laws against communicating for the purposes of prostitution, living off the avails of prostitution and keeping a common bawdy house.
The challenge will focus on whether prostitution laws violate a constitutional guarantee to life, liberty and security of the person by exposing sex workers to danger.
Law professor Alan Young, a lawyer for the challengers, said yesterday that he took pains to construct the case as one that involves the health and safety of sex trade workers – not one that revolves around moral judgments.
“From everything I’ve seen from the intervenors, it seems they want to resurrect an old and tiresome moral argument that was used in previous centuries to justify this secular law,” Prof. Young said in an interview. “Ultimately, I believe the hearing judge will reject this, but it could be a significant distraction. I do not want to have to deal with spiritual values in this case.”
However, Derek Bell, a lawyer representing the three groups, maintained that his clients “can make a useful contribution to the proceeding. … Nothing in that argument is revolutionary. The criminal law has been, and always will be, grounded in morality.”
Mr. Bell said that the prostitution laws express a clear community view that prostitution is immoral. “It is open to the state to say: ‘We’re not going to legitimize prostitution by having it take place in public,” he said.
“If the Canadian public wanted these laws changed, Parliament could change them in a moment. But does the Charter require them to be changed? My clients say ‘absolutely not.’”
Prof. Young said that the groups are unlikely to consume a substantial amount of court time. “It shouldn’t have any dramatic impact on the case other than to confuse and distract the judge into thinking this case is about the morality of sex work,” he said.
Yesterday’s ruling was issued by judges Stephen Goudge, Eleanore Cronk and Gloria Epstein.