TORONTO — A ban on brothels puts prostitutes at risk and is unconstitutional, Ontario's top court ruled Monday, in a case that is expected to be appealed to Canada's top court and have ramifications for the country at large.
The Ontario Court of Appeal said sex workers should be allowed to work safely indoors.
"The world in which street prostitutes actually operate is a world of dark streets and barren, isolated, silent places," said the five-judge panel in their ruling. "It is a dangerous world, with always the risk of violence and even death."
The court in Canada's most populous province has given the government a year to rewrite the law if it chooses.
The panel also said Monday that rules against profitting from prostitution should apply only to "circumstances of exploitation" to prevent pimps from exploiting prostitutes.
The change will allow police to prosecute violent and manipulative pimps while at the same time permitting prostitutes to hire drivers or body guards to protect them, the court said.
At the same time, the court said concerns about the nuisance created by street prostitution are real, having a "profound impact on the members of the surrounding community." So it upheld the ban on soliciting for the purposes of selling sex.
Prostitution itself is not illegal in Canada, but pimping, operating a brothel and communicating for the purposes of selling sex were considered criminal acts. A lower court judge ruled in 2010 the prostitution-related laws were unconstitutional in that they contributed to the dangers faced by prostitutes.
Both sides have 60 days to appeal Monday's decision to the Supreme Court of Canada.
Julie Di Mambro, a spokeswoman for Canada's Justice Minister Rob Nicholson, said the government is reviewing Monday's ruling and its legal options.
"As the Prime Minister has said, prostitution is bad for society and harmful to communities, women and vulnerable persons," she said.
"We continue to see a social need for laws to control prostitution and its effects on society."
Ontario Attorney General John Gerretsen said the Ontario government is considering appealing the decision to the Supreme Court of Canada.
Terri-Jean Bedford, a dominatrix, has argued that Canada's sex trade laws force workers from the safety of their homes to face violence on the streets. Bedford's "Bondage Bungalow" north of Toronto was raided by police in 1994.
Valerie Scott, a former prostitute who launched the challenge with Bedford, said prostitutes are safer when they don't have to patrol the streets. She said that sex workers can now call police and report a bad client.
"I'd like to thank the Ontario Court of Appeal justices for pretty much declaring sex workers persons today," Scott said. "I didn't think I'd see it in my lifetime, but here we are.
She noted that the vast majority of sex work has already been taking place inside bawdy houses, as they're called in Canada.
"I do worry about my street colleagues. We have to figure out something to make these women and men safe ... when you have other people around, generally (in a bawdy house), you don't see as much violence."
"I feel like we're debutantes at a ball," said Scott. "We're almost real citizens so this is wonderful."
Alan Young, the lawyer for the women, called the decision a win for sex trade workers and society.
"Canadian society will not collapse or even flinch under the weight of this decision," Young said. "Eighty percent have moved indoors. The movement has already occurred, and now the law is following afterward."
"It has not created a large infrastructure and business enterprise for the sex trade, but what it has done is that it's opened up the law enough so that people who choose to enter the sex trade, which is a legal choice, will now be able to avail themselves of certain types of safety measures that previously the law in a very callous way said, 'We don't care, suffer.' Now you don't have to suffer."
Brenda Cossman, a University of Toronto law professor, said Monday's ruling is not going to lead to an explosion of brothels in the province.
"There are thousands of workers who practice sex work out of their homes, out of establishments that they've rented where they work with one or two other women, are we going to now see brothels springing up in everyone's neighborhood? No, because frankly they're already there and you just didn't know about it. All this law does is make what those women do legal now and allow them to practice in an environment that will be safer."
Cossman noted that the province grants 25 "body rub" licenses a year.
Julie Grant, the executive at large of the Sex Professionals of Canada, agreed that the ruling will not be a huge change for the industry.
"Bawdy houses have been operational for as long as the industry has existed, they've just been somewhat invisible, existing as adult massage parlors and with women operating out of their homes or in hotels as escorts. We're not all of a sudden going to become the Wild West with brothels filled with women and beer bottles in saloons popping up everywhere," said Grant. "Canadians have always been discreet with the way the sex industry operates and this will continue."
Rob Gillies in Toronto contributed to this report.