Don’t wait for the courts to strike down bad laws
Anew study on sex work is further confirmation, if any were needed, that Canada’s prostitution laws are badly out of date and harmful.
Two court decisions have said so, too, and soon the Supreme Court will pronounce. But there’s no need to wait. The question of whether these laws are constitutional is distinct from the question of whether they’re good. Parliament tends to neglect its duty to consider the second question, especially when it comes to contentious moral issues.
That way, politicians can leave the difficult topics untouched, throw up their hands and say the courts decided. Some of them, if they’re so inclined, can even complain about activist judges. Win-win.
The courts never said, for example, that Canada can’t have any abortion law; they only struck down the law that was on the books at the time. It’s Parliament that now avoids discussing even related questions.
To take another example, it was provincial courts of appeal that ruled that the exclusion of same-sex couples from the marriage law was unconstitutional, 10 years ago. It was only well after the courts starting weighing in that the Liberal government stopped opposing the idea of same-sex marriage. In June 2003, the Citizen’s story headlined “Canada to allow gay marriage” quoted then justice minister Martin Cauchon: “Not to appeal means that we have recognized the definition that has been developed by the courts.” Not exactly an “I Have a Dream” speech. That government even took the step of putting its new law to the Supreme Court first in a reference case, further distancing Parliament from the responsibility for the decision.
The British Columbia Supreme Court recently decided, in a reference case, that the current law against polygamy does infringe the Charter of Rights and Freedoms, but that (with one small exception) those infringements are justifiable. I wrote two columns soon after explaining why I thought that decision was flawed. In any case, the law’s a bad one, whether it’s constitutional or not. Parliament could reform it or abolish it if it were so inclined. I recognize that it is not so inclined, but politicians should at least be prepared to defend the law on its ostensible merits, and not simply shrug and say the court said they didn’t have to change it.
The existing law certainly has not protected the women and children of Bountiful, the fundamentalist community that is the quintessential example of why we supposedly need to keep that law on the books in its current form.
As with polygamy, the prostitution laws that were put in place to protect women are redundant, patronizing and overbroad. In both cases, there are better laws already in place to prosecute exploitation, violence, sexual assault and kidnapping.
The new report “Beyond pimps, procurers and parasites: Mapping third parties in the incall/outcall sex industry” by Chris Bruckert and Tuulia Law, of the University of Ottawa’s criminology department, is the result of a three-year study of the issue.
Prostitution itself is not illegal in Canada. But a slew of laws criminalize other behaviours, such as keeping a bawdy-house, communicating in public or living off the avails of prostitution.
Most Canadians would probably have no problem criminalizing the behaviours of the stereotypical violent, exploitive pimp. But that isn’t typically how prostitution works in Canada. And when it does, there are other laws, not specific to the sex industry, that already criminalize those behaviours. The Criminal Code prostitution laws apply to all kinds of other people, including many of the people who might help keep prostitutes safe, such as drivers. The laws push prostitution out onto the streets and make it more dangerous.
Two recent court rulings have recognized that at least some of these laws are having unintended and deleterious consequences. But everything is on hold pending the Supreme Court decision.
The court process makes it likely that, in the words of Bruckert and Law, “we, here in Canada, are standing at the precipice of a dramatically different judicial (or legislative) approach to sex work. What is much less clear at this juncture however, is what that approach will look like.”
In other words, we could just wait and let the courts strike down the laws, and put nothing in their place. Or, we could actually have a national conversation about how we want to protect the interests and rights of sex workers and the communities in which they live.
The Liberals like to pat themselves on the back for same-sex marriage. But true moral leadership would have been deciding the discriminatory law was bad before the courts found it unconstitutional.
The Conservatives may be inclined to let the prostitution issue wend through the courts, so they can throw up their hands and claim there is nothing to be done. But true moral leaders — scrap that, half-decent legislators — would be willing to consider whether the country’s laws are having the intended effect, and whether another approach might work better. And true defenders of small government would consider it a duty to make sure no bad laws remain on the books simply because the courts haven’t got around to striking them down.