Warning: This is all written by someone with no legal edumacation.
Recently, the Ontario Superior Court struck down three laws surrounding prostitution as unconstitutional. For those unaware, the Constitution Act, 1982 begins with what has become the most important legal document in Canadian history, the Charter of Rights and Freedoms.
I’m not going to pretend to have read Justice Himel’s verdict, as I can imagine it to be one of the most boring reads in history, but what I imagine it relates to, from my reading of the press is this…
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
That quote comes from the Charter and seems to best apply to what the verdict came down to, the security of the men and (mostly) women in this line of work. Prostitution was not illegal in Canada, however “communicating for the purposes of prostitution, pimping and operating a common bawdy house” were all illegal.
I was slightly annoyed to see comments on the websites for national papers bemoaning that, once again, courts were legislating when that is the job of the legislature. I would like to comment on that, as it’s the stupidest thing I have ever heard. I’ve heard similar things expressed in the ongoing American discussion of gay marriage, something in which they should follow Canada’s lead on. Why is this stupid? Because the courts only found a flaw in Canada’s existing laws. They struck down legislation that was contrary to the Charter and the Charter must be held as the higher standard.
If prostitution is legal, then it must in turn be legal for a woman (or man) to go about their means of employ in a safe manner, whether that be proper screening of clients, working in groups for greater security, or hiring body guards.
The courts did precisely what they were designed to, but where does that leave our legislators?
Lots of options.
1) Wash their hands of the issue, and allow the industry to flourish in a legal state, and self-regulate.
2) Step in and regulate.
3) Make prostitution illegal.
4) Use the notwithstanding clause as a stop-gap to allow the government time to properly research the best course for the future.
5) Have the courts postpone the effects of this verdict until it can be appealed.
6) Lots of others.
I’m a fan of number four. Though I’ve never been a fan of the notwithstanding clause of the constitution, it does seem to illustrate a good use here.
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
The constitution specifically states that an Act of Parliament can act outside of the terms of the constitution for a maximum of five years (unless renewed by the parliament). This would allow more than ample time for a Parliamentary committee to properly evaluate the consequences of these laws, and how best to go forward into a non-partisan future of security for sex-workers. Whether the most secure future for them would be outright illegality, or legality, or a gambit of options between.
“There’s no place for the state in the bedrooms of the nation … what’s done in private between adults doesn’t concern the Criminal Code.” – Pierre Trudeau, Prime Minister of Canada 1968-1979, 1980-1984
The question really boils down to, what is the role of government? Is it to legislate morality, or to simply legislate safety? I’d opt for the latter, as morality changes, and will never be consistent across a nation as diverse as Canada, but safety is something tangible.
Does prostitution encourage human trafficking? Certainly.
Does prostitution’s existence create the possibility of child prostitution? Of course.
Do any of these change in quantity with legalized prostitution? Hell if I know.
Both those scenarios are disgusting and horrible, but we have legislation to protect children from such things, and to prevent human trafficking. Has the work-around illegality of prostitution so far prevented those from existing at greater numbers? I don’t know.
I’m writing this all from a academic point of view. I cannot enter in with any authority on the subject. I’ve never been either a lady of the night or a punter. This legislation has not affected me personally and, most likely, never will. Beyond that, I have never studied the options, and I don’t know what they are… neither does the Prime Minister, the Premier, or the Attorney General. I think the best option right now is to conduct a non-partisan, cool headed, and balanced examination into the possibilities.