Class action

It sounds like something from the dust jacket of a John Grisham novel: An unlikely legal team — one law professor and a handful of students, working mostly for free — takes on a dozen government lawyers in one of the most important constitutional cases this decade ... and wins.

But this isn't the plot of a legal thriller. This was Sabrina Pingitore's life for nearly three years as she laboured to build a case that saw three key provisions of the Criminal Code of Canada struck down by an Ontario Superior Court judge. 

Law school was busy enough before these students took on the research and interviews involved in a constitutional challenge.

Pingitore and a handful of other law students, led by York University professor Alan Young, mounted the challenge on behalf of Toronto dominatrix Terry-Jean Bedford and two former prostitutes, Valerie Scott and Amy Lebovitch, arguing that current prostitution laws actually endanger the lives of sex workers.

Bedford and her co-applicants want a profound change in what they see as Canada's backwards prostitution laws. In a country where prostitution is technically legal, almost everything else associated with paid sex work is not. Communicating for the purposes of prostitution, living on the avails of prostitution and operating a common bawdy house are all illegal.

They took their case to the Ontario Superior Court, challenging sections of Canada's Criminal Code that they said violated their constitutionally guaranteed rights to freedom and security.

And on Sept. 28, Justice Susan Himel agreed.

In her 131-page decision, Justice Himel pointed to evidence that violence against sex workers has become endemic in Canada and that laws originally intended to protect prostitutes have actually endangered them — forcing them outdoors and preventing them from adequately screening potentially dangerous clients.

The decision is set to take effect in the province of Ontario within 60 days. But with an appeal from federal Crown lawyers already in the works, the case will almost certainly go all the way to the Supreme Court of Canada.

In the meantime, the hard-fought victory at the Ontario Superior Court still feels surreal to Pingitore and her colleagues.

"We are still shocked that we actually won," says Pingitore.

"(The Crown) had so much more manpower than we did, but I think we did okay anyway," she adds with a laugh.

Building the case

With the help of approximately 10 of his students working without pay, Young drafted the initial affidavits for the nearly 30 witnesses he would draw upon for the case.

Pingitore recalls beginning her work for Young in January of 2008 — juggling her research work on the Bedford case with the academic demands of her first year at Osgoode Hall Law School.

I made the decision that this was more important to me than making sure I got excellent grades in school. Faced with the theoretical law work versus the real, actual law work — one just seemed far more enticing. —Kendra Stanyon

"It gave me a new appreciation for how much time and energy and effort goes into these things," she says. "In law school you read these decisions, and you don't really realize what went into it."

Kendra Stanyon was also in her first year at Osgoode when she joined the team working on the Bedford case. She admits that her grades suffered as she poured herself into working on the case in the winter term of 2009. But she also describes it as a time when she "fell in love with the law."

"I made the decision that this was more important to me than making sure I got excellent grades in school," says Stanyon. "Faced with the theoretical law work versus the real, actual law work — one just seemed far more enticing."

"I basically just put most of my energies into the case."

During the summer of 2009, Young hired three extra students to work almost full-time on the Bedford case. Each of them only earned the standard $14 per hour paid by York University to research assistants.

Stanyon describes long weekdays spent on campus — and some weekends too — scouring reports and researching the issues involved in the case.

"There were a whole lot of late nights where we would be up on campus until 9 or 9:30. (We'd) skip dinner and just be surrounded by paper [to] get everything done," says Stanyon.

Stanyon was in charge of researching government-commissioned reports into prostitution and solicitation laws — including the 1985 Fraser Report, a 1998 joint federal and provincial study and the 2006 findings of a House of Commons subcommittee on prostitution.

And what she found made her angry.

According to Stanyon, all of the reports reach similar conclusions about the health and safety dangers associated with sex work outdoors. Nearly all of the reports were unanimous in concluding that those dangers could be reduced with some form of decriminalization and regulation of the sex trade.

And in almost every case, the governments who commissioned the reports largely ignored the findings.

Kendra Stanyon worked as Alan Young's research assistant from January 2009.

As Justice Himel noted in her decision, the federal government's own 1985 Fraser Report had unequivocally "concluded that the law on prostitution had failed to achieve its underlying objectives of reducing prostitution. Instead, it operated to victimize and dehumanize prostitutes."  

The same year that the Fraser Report was released, Bill C-49 was enacted, making communication for the purposes of prostitution illegal.

"(Reading) those conclusions and then being able to trace the government inaction in response to those reports — reports they paid for and commissioned — was really upsetting," says Stanyon.

"(It) kind of lights the fire under you in terms of wanting to help any way you can," she adds.

David and Goliath

By 2009, it had become clear to Pingitore that they were not only outgunned, but they were also massively underfunded.

"We were doing everything on a shoestring budget (from) Legal Aid," says Pingitore, who was in charge of the budget for the case.  "I don't know how we even managed."

Pingitore points out that just one of the Crown's more minor witnesses, a professor from the University of Ottawa, was paid $10,000 for his affidavit — a figure that represented almost a quarter of their own Legal Aid budget.

She adds that they were unable to pay any of their own witnesses. They even struggled to bring two experts, one from the United States and one from Australia, into the country for the cross-examination.  In fact, the Crown stepped in to provide crucial funding to bring in one of the applicants' expert witnesses.

Stanyon describes the intimidating atmosphere that permeated their meetings with Crown lawyers: "Whenever we would go and meet with the federal prosecutors downtown, they would bring their articling students and their younger associates to take notes [and] all Alan would have on his side were first, second and third year law students who were taking time out of class to help out," says Stanyon.

We are able, with the use of a small group of volunteers, to produce what a law firm will require half a million to a million dollars to do. — Alan Young

Echoing Young's words to reporters following Justice Himel's decision, Stanyon adds: "It was a David and Goliath situation for sure."

Bedford v. Canada

After years of preparation, hearings for the Bedford case began last fall.

Pingitore recalls the excitement of appearing before a judge for the first time, sitting at the council table and assisting her professor.

"I always thought we had a really good case — but when we were in court and (Young) was actually laying out the arguments for the judge, I was kind of surprised at how much better our argument was than I had even thought," says Pingitore.

Young laid out the applicant's case — which rested on the argument that the three impugned Criminal Code provisions violated the sex worker's constitutionally guaranteed rights to freedom of expression and security of the person.

The hearing took several days with submissions from federal Crown lawyers, the Attorney General of Ontario and intervening parties that included the Christian Legal Fellowship, REAL Women of Canada, and the Catholic Civil Rights League.

Crown lawyers argued that striking down the challenged provision would create a legal vacuum and that invalidating those provisions — without enacting something in their place — would endanger the public.

It would take nearly a full year for Justice Himel to deliver her decision.

Invisible workers within the justice system

On Sept. 27, 2010, the day before Judge Himel released her decision, Pingitore sent an email to Bedford, Lebovitch, Scott and the witnesses who had assisted on the case. She thanked them all for their hard work and told them that, regardless of the outcome, she felt that they had done something good.

Shortly after 1 p.m. the following day, a full media circus had erupted around Young and the vivacious Bedford — whose penchant for carrying a leather riding-crop to court had made her a darling of the press.

Alan Young's Osgoode law school students helped him build the constitutional challenge.

Justice Himel had released her decision, striking down all three of the challenged provisions and refusing the Crown's request for a stay. In her decision, Justice Himel stated that the danger faced by prostitutes greatly outweighed any harm which may be faced by other members of the public.

The work that Pingitore, Stanyon and other students did on the Bedford case was largely invisible to the public — in the way that much of the work that law students do across Canada at legal clinics or as duty counsel is also invisible.

"I really cared about the case and so it didn't seem like an imposition at any time," Pingitore says. "I think we were all just happy getting the experience and getting to work on this."

But Pingitore and Stanyon at least have the gratitude of Bedford, her fellow applicants and of course, their professor.

"Their presence is indispensable to my ability to do (this) work," says Young. "I think every big case that I have ever done has always had a team of students who are given very specific and discreet tasks."

For more than 10 years Young has brought challenges to the courts related to what he describes as the criminalization of consensual activity by state authorities. He has brought constitutional challenges to gambling, obscenity, bawdyhouse, and drug laws. In 1995, Young mounted a successful challenge to the "drug literature prohibition" in the Criminal Code on the basis that it violated the constitutional right to freedom of expression.

"We get stuff done that other lawyers won't do," says Young. "The disadvantage is that they are lawyers in training — it sometimes adds more work to my workload, depending on the student."

"(But) we are able, with the use of a small group of volunteers, to produce what a law firm will require half a million to a million dollars to do," says Young.

"(Without students) I would not have been able to achieve any of the results or cases that I have undertaken in the past 15 years. I just wouldn't be able to do it."

Pingitore is now an articling student at Toronto firm McCague Borlack. Stanyon is completing her third year of law school before beginning her articling at Greenspan Humphrey Lavine in Toronto.

From classroom to courtroom

Law school is busy for anyone, but for a group of students, taking on a constitution challenge didn't just add to the load — it made it all worth it.