Over the past decade, Osgoode Hall law professor Alan Young has, with a quiver-full of constitutional challenges, been taking aim at the consensual crimes found in the Criminal Code.
“I’ve had a shot at obscenity, a shot at gambling, a shot at the drug laws. Unsuccessfully,” Young tells Law Times. “I became somewhat discouraged.”
But then it hit him. When he lost the marijuana possession challenge in 2003, the Supreme Court of Canada, “without knowing it, gave me the basis for my final challenge.” And so, Young is going after the last so-called consensual crimes on the list: three prostitution-related activities that “are leading to a lack of safety within the profession.”
Joining forces with current and former prostitutes, and some of his students, Young has set his sights on toppling a trio of provisions of the code dealing with the sex trade. The application is seeking an order declaring that ss. 210 (bawdy house), 212(l)(j) (living on the avails) and 213 (1)(c) (communication) violate s. 7 of the Charter and are thus unconstitutional, and an order declaring that s. 213(l)(c) of the code violates s. 2(b) of the Charter.
“After crying a little bit over what I thought was a bad loss,” Young says he realized the Supreme Court talked about a doctrine of gross disproportionality, whereby a law could be constitutionally challenged if you could show that the harms created by the laws grossly outweigh the benefits of the law.
“They had already started digging up the bodies on [Robert Pickton’s] pig farm [in British Columbia],” he says. “A voice went off in my head saying, ‘You talk about the harms of the law being death, abduction, and assault, and the benefits of the law are a big question mark. No one’s ever really known what the benefits are’ . . . I’m thinking this sounds like a no-brainer. Death versus no positive effect from the law.”
Armed with $10,000 from Legal Aid to marshal witnesses (with the stipulation that he and two other lawyers, Stacey Nichols and Ron Marzel, working on the challenge not get paid), Young filed in March 2007.
The applicants are Terri Jean Bedford, Amy Lebovitch and Valerie Scott. Twenty-two witnesses have tendered affidavit evidence, and according to the application they “outline the nature and frequency of physical and psychological violence experienced by sex trade workers in various cities and towns across Canada. Some of them are experts who’ve done empirical work. Some of them are civilians who work in the sex trade.
Some of them are civilians who operate prostitutes’ rights groups,” says Young. “It took a year but the federal government has finally responded . . . We are at a stage where we’re about to get into the evidence-testing stage where we have cross-examinations set up.” They are working to get all cross-examinations done this year with a view to having the argument next summer.
The federal Crown has submitted 33 affidavits and has witnesses from Australia, Nevada, Holland. “They’ve gone around the world,” says Young. “What I’ve been told, without really assessing it, is they’ve recruited pretty much all the radical feminists who believe that prostitution is inherently degrading and violent.
My issue about having prostitutes have the legal right to move indoors is a non sequitur because it’s not going to make anything better. And so, this case has become not just about constitutional law; it’s become very much about politics.
I’m trying to keep it as a non-political constitutional challenge and just deal with gross disproportionality, but the Crown has thrown everything and the kitchen sink in here, including why people become prostitutes, the prevalence of trafficking, the prevalence of child prostitution.
“Let me say for the record very clearly I’ve never supported and never will support trafficking in women or child prostitution,” he says. “My case does not touch any of the provisions that are designed to protect us against those evils.”
The primary challenge, he says, is the doctrine of gross disproportionality as being a violation of fundamental justice and “my evidence should demonstrate that the harms of the law are significant and severe, dealing with daily brutalization, leading to murder of many sex trade workers. Those are the harms created by the law, and the benefits are nil.”
Young says the law “significantly” contributes to the lack of safety for a profession that the government considers legal. And yet, unlike any other legal profession, “you are not allowed to legally move inside, which is a secure setting. That’s bawdy house law. No one should ever have to choose between complying with the law and their personal safety.
“Secondly, the other way you secure some degree of safety in a volatile profession is have security and have people work with you,” says Young. “Well no one can work for a prostitute because it’s considered living on the avails. So you can’t move indoors, you can’t have any form of security, and if you do choose to work on the street - which I think is a mistake but many people do - you can’t communicate.”
Young asks, “How are you supposed to screen the vehicle to determine if Robert Pickton is driving it, or whether a legitimate john is? I’m not saying communication is the end-all-be-all, but the government of Canada said, ‘Get in a car, and don’t talk.’”
He says the bottom line is if you can’t communicate you can’t screen. If you can’t communicate, you’re “entering into insecure locations in haste and precipitously, and we know that people have been abducted . . . Would their ability to communicate have prevented it? Maybe. Maybe not,” says Young.
“But the fact that the law prevents you from doing something that’s necessary for self-preservation means the law is contributing to the lack of safety in a legal sex trade.”
Young says if he succeeds there would no longer be a criminal offence to work with prostitutes, to communicate and work indoors. But, he adds, what the future brings after the challenge is not his issue. “I’m a constitutional lawyer. My job is to destroy, to topple institutions, not to build them . . . If a constitutional challenge topples an institutional framework, it’s up to the government to decide what they want.”
But, he notes, if the law is struck, there’s a way to “do it right, and there’s a way to do it in a stigmatizing, marginalizing way . . . Hopefully, if we are successful in the challenge, there will be a more progressive approach by our government.”
Young says the only reason he’s been able to do challenges like this one on a shoestring budget is his one resource, “which is idealistic and energetic students who want to change the world. I exploit that.”
He currently has three students working pretty much full time on the case, and a group of volunteer students have pitched in. “That’s the only way I’ve been able to do any of these cases, because I couldn’t single-handedly put together a record of 22 witness, it would have taken me two-and-a-half years.
“The case is only doable because of the assistance provided by my students. They do pretty much most of the groundwork, quite frankly. They put the record together. They are right now looking at the Crown’s evidence to tell me where the weaknesses are and what type of evidence I should be calling as they look for reply witnesses. It’s a very valuable asset and it’s the only way that these cases can be done,” says Young.
He doesn’t feel like the tired old David and Goliath cliché, however. “If you’d asked me that 12 years ago, yes. Now, I don’t feel that anymore because I’ve done this too much. I don’t notice the government as Goliath. I know they are, [but] I’m not impressed by their resources and their commitment to preserving the law. I’m not impressed or intimidated.”
Meanwhile, the attorney general of Ontario has given notice of intervention.
“ . . . It is a serious battle with the government feeling they have a very strong position to advance . . . [and] it’s become clear to me for reasons that I can’t explain the government is desperate not to lose these laws,” says Young.