Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 31 On all four counts, the Bedford case hit the mark. The Supreme Court of Canada had been busy expanding the notion of gross dis- proportionality and would likely be prepared to carefully weigh the motivation behind a law with such obvious ill consequences. In its recent Insite decision, the court had blocked a federal government attempt to close a safe injection site for Vancouver heroin addicts, reasoning it was integral to their safety. Young knew this approach would play into his central argument; that studies and commissions had repeatedly concluded the prostitution law imposes unaccept- able impediments to the safety of sex workers. Young also sensed a growing recognition in the country that sex work, however distasteful to some, represented a legitimate choice. "There are a lot of bad jobs that people do out of desperation," he says, "and I don't think selling sex is necessarily the worst one." His opponents were high-powered teams of federal and Ontario prosecutors, backed by religious groups and several feminist schol- ars. Their initial tactic would be to invoke the doctrine of stare decisis; essentially arguing the landmark 1990 Supreme Court of Canada decision in Reference re ss. 193 and 195.1(1)(C) of the Criminal Code had slammed the door on any notion sex workers can shield themselves using the Charter's s. 7 guarantee of life, liberty, and security of the person. Another pillar of the Crown's approach was that sex work, whether practised in a boudoir or a back alley, is inherently dangerous. When sex workers opt to enter the trade, the Crown maintained, they exercise a rational choice no different from other workers who face heightened risks, such as taxi drivers or police officers. Young recruited two-dozen Osgoode students who were keen on trial experience. The group scanned affidavits from Crown experts that were replete with horrifying accounts of abducted sex slaves and women being imprisoned in cages, eventually conclud- ing the witnesses were a roving band of sex work abolitionists whose overwrought evidence had little application to Canada. The students split up the work of probing the background and previous utterances of each expert in search of material that would expose them as zealots and ideologues. Young's own witness list included sex workers and experts who would attest to the relative dangers of indoor and outdoor prostitu- tion. He also assembled empirical evidence from New Zealand, Australia, Germany, and the Netherlands — which had experi- mented boldly with decriminalizing and regulating sex work. The applicants adopted an uncomplicated media strategy. Months prior to the trial, he selectively "leaked" news of the chal- lenge. As it came closer, he offered up Terri-Jean Bedford — an effervescent, whip-cracking S&M madam — as catnip for the electronic media. "We had to play this on two fields — the legal forum and the public forum," says Stanyon. Even then, the press showed virtually no interest as the proceeding reached court. Nor did the litigants — Bedford and two other prostitution activists, Valerie Scott and Amy Leibovitch — feel optimistic. "I thought there was no chance we could win," says Scott, president of the Sex Professionals of Canada. There had been no jostling on the Ontario Superior Court bench for the Bedford proceeding. Justice Susan Himel had temporarily agreed to case manage the litigation, but was stymied none of her colleagues seemed interested in presiding over the trial, says Young. "So, she heard it herself," he says. "She did a great service when she took this case by the horns and made sure it wasn't derailed." In contrast to his clients, Young felt almost cocky heading into the courtroom battle. Not only had society become liberalized, he felt he had ample proof a preposterous law was imperiling sex work- ers. "One serial killer after another has said that they pick prostitutes as their victims because they are easy to pick off," he says. "The law creates this stigma; that these are second-rate citizens who go miss- ing and who cares?" Young also believed the Crown had failed to comprehend the case would revolve around whether the provisions were abysmally misaimed and out of kilter with their goals. Throughout the eight-day trial, Himel gave nothing away. Then, she spent a year considering and drafting a masterful judg- ment that was firmly anchored in the evidence and written to withstand being picked over by two sets of appellate benches. The September 2010 decision made short work of the Crown's stare decisis argument. The 1990 prostitution reference had been a far different case than Bedford, Himel reasoned. Since then, the vul- nerability of sex workers had been graphically evident on B.C.'s Highway of Tears; at Willie Pickton's pig farm; and in the horrify- ingly depleted ranks of sex workers in Edmonton and Winnipeg. Himel had stinging words for experts on both sides of the case, but reserved her most scathing comment for a handful of key Crown experts. She said their desire to eradicate prostitution had permeated their testimony and clouded any sense of objectivity. "At times," Himel observed, "they made bold, sweeping statements that were not reflected in their research." Young, the litigants, and the students were elated. In an era where decisions by trial judges attract great deference, they were armed with an exceedingly careful assessment of the facts. "It can't be underscored enough what a difference Justice Himel's decision made going into an appeal," says Stanyon. "We knew that we had some unassailable facts and findings that were pretty well locked-in." The decision both startled the country and woke up the aboli- tionist camp. Opponents focused their attacks on a contention that the decision would not help those who most needed protection — so-called "survival sex workers": drug-addicted street prostitutes with no hope of finding work in a brothel. More than a year later, the Ontario Court of Appeal heard the case. Its March 2012 ruling ultimately affirmed Himel's findings against the bawdy house and pimping provisions. They split 3-2 to uphold the communications provision rather than there are a Lot of bad jobS that peopLe do out of deSperation and i don'T ThinK selling sex is necessArilY The worsT one. — aLan young

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