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Bad law

Cover Story
|Written By Kirk Makin
Bad law

It was just last summer that a team of lawyers led by Alan Young persuaded the Supreme Court of Canada to strike down the country’s prostitution law. But the seeds of the litigation were sown 25 years earlier, in the chill, pre-dawn hours of a Toronto morning. Young, a young lawyer at the law office of legendary criminal lawyer Alan Gold, had fielded an urgent call from a client who operated a dingy brothel near the city’s downtown bus depot. The joint was being raided, and the nervous client wanted help.

Young arrived to find police methodically arresting unsuspecting hookers and johns as they entered the establishment. The air was thick with profanity and fear. Women berated the officers; johns shuffled in apprehension at what awaited them. One question kept playing through Young’s mind: If this was a crime, where was the victim? “It was sad and pathetic,” he recalls. “I couldn’t see the public interest behind the raid. It was just hurting people and wasting court and police time.”

The message Young took away would dictate the shape of his nascent career: The state has no business interfering with consensual, pleasure-seeking acts. “I happen to think that people should be allowed to make their own heaven and hell,” Young says. “I needed to start challenging these laws.”

Before long, he was challenging laws that targeted gambling, obscenity, and pot smoking. Some cases broke new ground; others flopped. It would take more than two decades for the stars to finally align for a determined run at prohibitions that govern solicitation, pimping, and keeping a brothel. The case of Bedford v. Canada (Attorney General) represented a landmark in Charter of Rights and Freedoms jurisprudence. It also forged a national profile for Young — a compulsive critic of established power and an unlikely lawyer who detests his own kind.

The surprising thing about Young was that, at 57, he was still in law at all. Growing up in a lower middle-class Toronto home in the Jewish enclave near Bathurst and Wilson streets, his orientation was toward fine art, poetry, and writing. When he was 10, land developers took a keen interest in a land investment his father had north of the city. Suddenly, the Young clan was wealthy. “I was never comfortable being affluent,” Young confesses. “I suffered from white, liberal guilt.” He would spend his adolescence as a dope-smoking, anti-capitalist peacenik with a pronounced dislike of authority.

Young’s sister suffered severely from psychiatric problems. It put inordinate pressure on Alan, her only sibling, to succeed. After dropping out of university programs in physics and fine arts, he took a desperate lunge at law in hopes of appeasing his crestfallen parents. “I actually hated them for over a decade because I’d become a lawyer,” says Young. “In reality, I was weak. I should have just stood up for myself and said I wanted to write.”

He may not have liked it, but Young emerged from Osgoode Hall Law School as a top student and clerked for former Supreme Court of Canada chief justice Bora Laskin. Then, he worked at Gold’s firm but didn’t much care for the practice of law. He set off for Harvard law school to obtain his LLM in hopes it would result in a teaching position, which it did. In 1986, he was hired by Osgoode Hall Law School.

 Around the same time, Young married a flamboyant, ex-Israeli military officer. However, at the time his life ought to have been at its most exciting, Young found himself bored and unchallenged again. Casting about for a stimulating sideline, he worked with the crime victims movement, dabbled in appellate work, and co-founded an Innocence Project branch at Osgoode. Simultaneously, Young cultivated a role as a go-to person for journalists seeking a colourful, insightful comment. He wrote regular columns in the Toronto Star and Now Magazine, covering everything from abusive policing and racial profiling to sentencing policies. His personal politics were best summed up in the title of his 2003 book Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers.

Accessible, profane, and entertaining, it described lawyers as bottom-feeders who escalate conflict rather than resolving it.

Young anticipated the book would hasten his exit from law. “I called it my professional suicide note. I really hated the profession.” However, note enough people bought it to create much of a stir. A rueful Young stored 400 copies in his basement, where they still gather mildew.

Young, convinced many of his fellow law professors viewed him as a “media slut,” was not keen to return to Osgoode. However, he and his wife, Rikki, had split up at around the time his book was published. Young soon remarried. He and his new wife, Laura, had a son together. Osgoode became a necessary source of income.

There was truth to Young’s fear that some faculty members and students dismissed him as a publicity-seeker with a somewhat sophomoric world view. However, others perceived him as inspiring, witty, and penetrating. “There is a feeling around the law school that he is this quirky guy,” says Kendra Stanyon, a student who helped with the Bedford challenge. “But if you were lucky, you got into his first-year criminal law class. He is a very compelling speaker who had fascinating ideas and perspectives.”

Young considers four criteria before adopting any constitutional challenge. First, pick a winnable battle and select the right forum. Second, good facts genuinely do drive the law. Third, rest the litigation on an evolving, malleable doctrine the judiciary is attempting to flesh out. Lastly, wait patiently for the emergence of a social climate favourable to your cause.

On all four counts, the Bedford case hit the mark. The Supreme Court of Canada had been busy expanding the notion of gross disproportionality 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 unacceptable 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 scholars. 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 concluding 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 prostitution. He also assembled empirical evidence from New Zealand, Australia, Germany, and the Netherlands — which had experimented 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 challenge. 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 workers. “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 missing 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 judgment 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 vulnerability of sex workers had been graphically evident on B.C.’s Highway of Tears; at Willie Pickton’s pig farm; and in the horrifyingly 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 abolitionist 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 have communities deal with disruptions caused by open solicitation.

Young’s job was about to become exponentially more difficult. The media pressed him for solutions to the question of how sex work could be successfully decriminalized and regulated. In addition, his supporters took sharply varying views on the form new legislation should take. This growing schism came to a head one afternoon, when Young arrived for a meeting of approximately 20 leaders of sex worker organizations. Walking into the room, Young felt acutely conscious of being the only male in a decidedly chilly room. He came under particular attack for not paying sufficient heed to the problems of survival sex workers.

In response, Young was typically frank. He said the Charter challenge had not been designed to solve every problem in the sex work industry. It was instead focused on creating safe havens for prostitutes to work with the protection of hired staff. “I was very clear from day one that anyone who sees a constitutional challenge as a panacea for a social problem is an idiot,” he says. “We have to create social service nets for survival sex workers. But that is not a legal problem. It’s a social service problem.” The experience had a souring effect on Young. “Suddenly, they smelled success and everybody started to want a piece of it,” he says. “Everyone wanted to tell me what to do.”

Young then compounded his problems by committing a cardinal error of communications; one that can easily sneak up on any public figure who has become used to dealing with sympathetic journalists. Unwisely, Young took at face value an approach from a National Film Board crew that was preparing a documentary on the sex trade. Taking them into his confidence, Young allowed them to film him at home, talking expansively about his mission, and during legal strategy sessions.

On the night the documentary aired, he and Laura were stupefied and scandalized. They felt it had been edited to make Young appear as a glib, one-dimensional, stick figure who was shilling for the sex work industry. The real stars of the film were actually Trisha Baptie — a reformed Canadian sex worker who was contemptuous of the trade she once plied — and a series of Swedish academics, legislators, and sex workers who spoke enthusiastically about that country’s attempt to eliminate the sex trade with a law aggressively prosecuting johns. Laura witnessed her husband being shaken to the core: “He was not expecting the Order of Canada, but to have his life’s work characterized that way was devastating,” she says.

Young ultimately sought and obtained more than 40,000 pages of e-mails and script discussions held between the film’s writers and producers. He wrote a 20-page rebuttal to the NFB exposing the film as nothing more than “deceitful character assassination.” The incident had the effect of eroding what little zest Young still had for the case. He arrived in Ottawa for the final act — before the Supreme Court of Canada — feeling insulted and unappreciated.

In private, Young had actually come close to abandoning the appeal altogether and letting someone else complete his work. “In the last six months, it went from utopia to dystopia for me,” he says. “There was a very concerted effort to discredit me and the case; to question my motives and create the impression that I’m a guy perpetuating violence against women. I became painfully aware that I was a solitary male standing up and speaking for what women want.” But at the eleventh hour, he sought out criminal law powerhouse Marlys Edwardh, whose presence at the appeal would go a long way to muting the criticism levelled at him.

Young also faced another, intensely personal distraction. A decade earlier, soon after she left their marriage, his ex-wife had settled into a committed relationship with Justice Michael Moldaver — now a Supreme Court of Canada judge. Young and Moldaver had studiously avoided one another in ensuing years, but their uncomfortable standoff was about to end. Entering the courtroom for the biggest case of his life, Young was confused about how he viewed Moldaver — not to mention, how Moldaver felt about him. Resentment? Rancor? Nothing at all? However, soon after the nine judges filed into the courtroom, Moldaver gazed in Young’s direction with a half smile. “I actually felt he was trying to reassure me,” Young recalls. “It was like he was saying that everything’s cool; that everything was in the past — he was where he wants to be, and I was where I wanted to be.”

In late 2013, the SCC struck down all three provisions. That they did so at all was remarkable. That they did it unanimously was stunning. Young’s only disappointment was there was sparse reference to the government reports and empirical evidence he had collected. “I actually fault the court for that,” he says. “If they want people to believe in their decision, they need to put some of that evidence in the judgment.”

Young has been neither chastened nor changed by his success in the landmark case. He is as skeptical as he ever was of the judiciary. He remains leery of the law itself and has zero confidence in the political process, particularly when it comes to legislators deciding what will replace the prostitution law.

Sex work activists appear to be getting outflanked by religious and feminist opponents of decriminalization, and debate is gradually focusing on the Swedish model — the attempted abolition of sex work by targeting johns exclusively for prosecution. The prospect fills many sex workers with horror. Rather than empowering them to pursue their chosen vocation, they see the Swedish model as a stifling, paternalistic regime that will send them and their clients back into the dangerous shadows. They believe it would simply drive prostitution underground, as sex workers try to protect their clients from possible arrest and prosecution. “It would be huge slap in the face to the Supreme Court’s findings,” says Scott.

Young is loath to see the recriminalization of consensual acts, but concedes there must be some form of regulation dealing with health standards. “People hate it when I say this, but when you buy meat, you believe it to have been inspected and approved,” he says. “If you sell your body, I think you should have to do the same.”

Young has developed a mantra he repeats whenever critics warn his landmark victory may ultimately set back the cause of decriminalized sex work. “I made a principled argument about why the law is flawed,” he says. “If we go back to square one after all this work, I won’t be happy. But if politicians and the public fuck it up, it won’t be my fault.”

Update May 21: Minor corrections to dates and personal background information.

  • Nordic Model

    Bill Murray
    It makes no sense that the government would foolishly replace the existing law with the Nordic Model. The Ontario Court of Appeal went to great pains (as in previous decisions) to make it clear that prostitution is a legal profession. If it is a legal profession you can not outlaw its clients as an end run on its accepted legality.
  • Feminism

    A Doty
    It's important to note that feminism does not equal abolitionism. Many feminists support sex work as real work and recognize that sex workers have the right to choose their profession and to demand adequate labour environments (see After Bedford article with gutsmagazine.ca). Bringing the Nordic Model to Canada would be a horrible misstep and I, too, hope that legislators will consider the facts and research rather than be swept up in pathos.

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