...and then along comes this moron, attempting to argue that the SCC decision is hinting at calling Parliament to adopt the Nordic model. How deluded can this guys be? I actually hope he tries to argue that one in Parliament just to show everyone what an idiot he really is! From
MP Jim Hillyer's Facebook page on January 6, 2014:
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On December 20, the Supreme Court of Canada issued a unanimous ruling that declared three key anti-prostitution laws to be unconstitutional – saying that the laws against keeping, working in, or being found in a common bawdy house (or brothel); against living on the avails of prostitution (“pimping”); and against public solicitation for prostitution are unconstitutional because they infringe on the rights of prostitutes by depriving them of security of the person.
At first glance, this looks like a devastating blow against the efforts to reform Canada’s prostitution laws and to make buying sex illegal in Canada. And it will be the devastating blow if we do not seize the opportunity that is presented by this ruling.
While most reporting interprets the ruling as a declaration that prostitution is a constitutional right that cannot be infringed upon, the Supreme Court was careful not to say that. In fact they went beyond that to specifically call attention to the fact that even before this ruling, our prostitution laws were inherently problematic – This ruling is a wakeup call that we must fix our prostitution laws; and the call is urgent, for the Courts have imposed a one year deadline.
The ruling calls attention to a glaring shortcoming in the current legislation – that prostitution itself, even before this ruling, was already legal. Indeed – they call upon parliament to come up with laws that would ‘pass Charter muster.’ In their decision the Court took care to say that these prohibitions are only unconstitutional given the fact that prostitution itself is legal in Canada. Since prostitution is legal, the Supreme Justices say that the three prohibitions make it too difficult for prostitutes to safely engage in sex work. Not only do they not say that prostitution should be legal or that it would be unconstitutional to prohibit prostitution itself – they go so far as to call upon parliament to do just that – find a constitutional way to prohibit prostitution. This invitation is quite telling of the Court’s inclination against the legitimacy of prostitution itself, and that the Judges do not think any laws against it would be unconstitutional.
The ruling consistently emphasizes the role of government to protect the life, health and safety of its citizens – and suggests that laws that contradict this role are unconstitutional. In the Court’s opinion the objective of Canada’s current prostitution laws is to ‘prevent public nuisance.’ Not only does this objective take a back seat to the higher objective of protecting the life, health and safety of prostitutes, it reflects a current lack of concern for the people involved in this industry. A change in objective will both address the ‘nuisance’ and acknowledge the worth and value of those who are involved in the industry and do more to protect their health and safety than simply removing the prohibitions in question (which only gives the illusion of protection.)
In the ruling the Court also suggests that the objective of criminalizing pimping is itself not only constitutionally sound but that we as a society through our laws have a duty to seek to protect people from this exploitation. The prohibition against pimping was struck down, not because exploiting prostitutes itself is a constitutional right, but because the prohibition as written could be used to prevent prostitutes from hiring bodyguards, secretaries and other supportive roles. Again, the Court felt its ruling was bound by the fact that prostitution itself is legal. That they have given us a year to fix this suggests that they think it can (and should) be done.
Fortunately, the federal and provincial lawyers arguing in favour of keeping the 3 prohibitions in question made a common mistake in regards to our understanding about prostitution – that it is simply a free choice by those involved to get involved and to stay involved. They argued that if prostitutes wanted to avoid the inherent risks of prostitution, they could simply choose not to engage in it (suggesting by extension that they must be able to choose to engage in it.) It is fortunate because it drew out an important response from the Court.
The Court’s response to this misplaced argument not only opens the door to make prostitution itself illegal but reveals that it is something that must be done if we are to fulfill the proper role of government. And it contradicts one of the leading justifications for the legality of prostitution – that it is a free exchange between consenting adults, and that therefore the government should not interfere.
The ruling states: “Realistically, while [prostitutes] may retain some minimal power of choice – what the Attorney General of Canada called ‘constrained choice’ – these are not people who can be said to be truly ‘choosing a risky line of business.’ . . . [Many] have no meaningful choice but to do so,” because of financial desperation, drug addictions, pressure from pimps, or other reasons.
Many were surprised that the ruling was unanimous – but I believe these ‘hints’ and suggestions show that the Court is not unanimously agreed that prostitution itself is ‘okay’. In fact their reasons given for the ruling are that prostitution is NOT okay – it is inherently dangerous, and people who enter it do it under constraint. But since it is legal, the prohibitions in question make it even more dangerous; if we do not have the moral courage to more fully protect prostitutes by properly criminalizing the sale of sex, we do not have the constitutional right to take away what small provisions that allow prostitutes to some extent protect themselves.
Anyone who is concerned about judicial activism, and believes that judges should not go beyond interpreting the law as it is, into the realm of creating new law, should be satisfied with this ruling. The Supreme Justices recognized that while they may not be satisfied with the laws against prostitution (or the lack thereof) that they do not have the authority to write new laws. They could not help but rule as they did, for the prohibitions are extremely difficult to justify if prostitution is legal and if it really is just a simple free exchange among consenting adults. But they do not have the authority to make prostitution illegal. They do not have the authority to rewrite the prohibition against pimping so it only applies to pimping. All they can do is accept a law or strike it down.
The fact that the Court made the highly unusual decision to stay their ruling for one year suggests that not only does Parliament have the right to fix our prostitution laws, that the Court believes that there is a constitutional way to do it and that they imply it is our duty to do so.
The Nordic or Swedish model that I have written about would do just that. I believe that with some careful legislating the general model can satisfy the Court’s proper concern for the protection of the life, health and safety of prostitutes, and addresses their correct recognition that this is not just another ‘trade’ or ‘profession’ but that it is inherently dangerous and demeaning, and that is NOT simply a matter of a free exchange among consenting adults.
Please see the following posts and articles for a more fulsome discussion about the justification and need for implementing the Nordic Model here in Canada (December Herald column, Facebook post introducing survey, question period statement etc). As well, you can also participate in my survey (
www.jimhillyer.com) to share your views.
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Panther
