TORONTO — A sex-workers’ support group has been denied the right to bring up a constitutional challenge in an upcoming high-profile case at the Ontario Court of Appeal which deals with whether prostitution laws in Canada put sex workers’ lives in danger.
Ontario Justice Dennis O’Connor wrote in an eight-page decision released Wednesday that Toronto-based Maggie’s will not be allowed to argue that prohibiting sex work violates the country’s equality rights by discriminating against women by sex and occupation.
“Introducing such a significant new ground on which to challenge the legislation, even on the existing record, would necessitate a thorough analysis of the record and the preparation of new material to address the issues,” he wrote.
Maggie’s, the first government-funded sex-workers agency in the world, had applied for intervener status because although it believes that current Canadian laws put prostitutes at risk by forcing them to ply their trade underground, it argues that the legislation discriminates against women — who make up the majority of sex workers.
In mid-June, a five-judge panel will reconsider a decision announced last year by Ontario Superior Court Justice Susan Himel. The decision struck down the laws that ban operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution because they endanger the lives of sex workers.
Both the federal and Ontario governments are appealing the decision, which essentially, could legalize the industry in the province and might pave the way for other jurisdictions across Canada to do the same.
The governments argue that there should be no obligations for them to provide safety measures for those who work in an illegal trade. The appeal also cautions that irreparable harm may arise if the sex trade were legalized in Canada, including a possible increase in sex tourism and human trafficking rings.
Last week, lawyers for Maggie’s stated that there was enough documented evidence presented in the original case to hear this new argument.
O’Connor disagreed, saying the vast collection of 25,000 documents which were presented by both sides was not sufficient to argue a new constitutional challenge and allowing it would result in a delay in the proceedings.
“I am satisfied that it would do a disservice to the parties, to the court, and indeed, the public interest to litigate a section 15 (of the Charter of Rights and Freedoms) challenge on the basis of this record,” he wrote.
He added that Maggie’s could join with one of the other seven interveners already approved in the case, which include the Canadian Civil Liberties Association, the B.C. Civil Liberties Association, the Canadian HIV/AIDS Legal Network and the Prostitutes of Ottawa/Gatineau Work, Educate and Resist.