On Dec. 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 wake-up 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 Court 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.
In my next column, I will present the possible options to Parliament in response to the Supreme Court challenge.