Prostitution laws: Over to you, Parliament

What the Supreme Court ruling means for the future of prostitution in Canada

Applicants Valerie Scott and Amy Lebovitch embrace after learning Canada's highest court struck down the country's prostitution laws in Ottawa on Dec. 20, 2013. (Adrian Wyld/CP)

“It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution. It is argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, and are therefore unconstitutional.”

And so Chief Justice Beverley McLachlin, writing for a unanimous Supreme Court, summarized today’s decision in the first paragraph of a ruling that proceeded to find that Canada’s prostitution laws violate prostitutes’ security of the person under section 7 of the Charter of Rights.

Each of the three provisions at issue in the case were found to increase the risk to the lives and safety of prostitutes in different ways.

Criminalizing the keeping of bawdy houses ultimately restricts lawful prostitution to the streets or to “out-calls,” where the prostitute meets clients at a designated location (often the john’s home). The Court agreed with the trial judge’s finding that the safest form of prostitution is to work indoors, independently, from a fixed location. McLachlin notes that a “law that prevents street prostitutes from resorting to a safe haven … while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.”

The prohibition against living on the avails of prostitution of another person was found to be “overbroad” because it prevents prostitutes from hiring individuals like bodyguards. In effect, the law prevented prostitutes from taking measures to increase their safety.

Finally, the prohibition on public communication is also detrimental to the safety of prostitutes because it forces them into unfamiliar and isolated areas to conduct their business and makes it more difficult for them to screen clients and assess potential dangers.

The Attorney General of Canada argued that prostitutes are engaged in an inherently risky activity and that they can avoid that risk and “any increased risks that the laws impose simply by choosing not to engage in this activity.” McLachlin correctly points out that many prostitutes do not have a meaningful choice in this regard. Further, she reiterated that the activity itself is not illegal, writing “[a]n analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”

The Court’s decision gives Parliament a year to draft new legislation to replace the old provisions. Notably, the justices shied away from making many grandiose statements or from trying to prescribe specific policy remedies. In effect, the decision gives Parliament ample room to sort out how to legalize, regulate or restrict prostitution in a way that conforms with rights under the Charter.

The government’s ability to “respond” to a Court decision in this manner is often referred to as an “inter-institutional dialogue” about constitutional rights. This dialogue does not always work. In fact, my own research suggests Parliament develops new legislation in response to the Supreme Court invalidating a law (or part of a law) in only a small minority of cases. This can happen for several different reasons. Sometimes the Court makes it clear the legislature’s original objective is unacceptable, as it ultimately did with respect to limits on prisoner voting rights in 2002. More commonly, Parliament is simply unwilling or unable to develop a new policy, which is what happened after the Court struck down the Criminal Code provisions restricting abortion access in 1988. In other cases the Court will simply tell the legislature what new policy provisions might be acceptable, as it did in 1995 when it struck down tobacco advertising restrictions and Parliament later drafted new legislation in accordance with the Court’s policy prescription.

In this case, however, it is clear that Parliament needs to develop new policies to replace the impugned provisions, and the Court was wise not to opine too heavily in its decision on what those policies ought to look like. The ball is firmly in Parliament’s court.

In one interesting passage, McLachlin even suggests that some of the old provisions could be revived in some fashion. “[The Court’s decision] does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.  Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure — for example, permitting prostitutes to obtain the assistance of security personnel — might impact on the constitutionality of another measure — for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.”

It is unclear whether Parliament can simply criminalize prostitution itself, an avenue the Harper government might be tempted to pursue. On the one hand, McLachlin’s repeated reference to the fact that prostitution is currently a “lawful activity” weighed heavily on the Court’s reasoning, and seemed to imply a “if you’re going to allow it, you can’t enact restrictions that increase its risk” logic.

On the other hand, the government should be cautious about assuming outright prohibition is a workable, or constitutional, solution. It is undoubtedly the case that simple criminalization would lead to the very harms the Court found constitutionally impermissible today.

It is also worth noting that many of the harm-based issues dealt with here are applicable to assisted suicide, an issue the Court is likely to confront later next year. If today’s ruling is any indication, it presages the possibility that the Court may overturn its 1993 decision to uphold the Criminal Code’s prohibition on assisted suicide.

The Court has enunciated clear principles with respect to ensuring the health and safety of prostitutes, and it is time for an honest, responsible dialogue in Parliament about how to regulate prostitution in accordance with Charter rights. It should entail more than hand-wringing about how we re-criminalize behaviour that some deem immoral. Instead, a host of policy measures aimed at giving prostitutes meaningful opportunities to exit the profession—while also ensuring those in the profession have the autonomy and control necessary to make it as safe as reasonably possible—might be something to which all parties can agree.

Nevertheless, many will be skeptical that Parliament is up to the task of having a mature, rights-oriented debate about a controversial and divisive policy issue. The Supreme Court has given our elected representatives an opportunity to prove that cynicism wrong.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, was published earlier this year by UBC Press. 




Browse

Prostitution laws: Over to you, Parliament

  1. “(…) a mature, rights-oriented debate (…)” about this issue from the Harperites? I doubt it. Their maturity is their morality and their morality is immature.

    • I wish a lot of you people would quit blaming Harper for everything that you perceive is wrong.
      What did the Liberals do? NADA. What would the Liberals do if they get in. NADA.

      • AGREED..that was my point as well. That said I do think Harper is a stick in the mud. As such decriminalization of social mainstays like prostitution and weed is something he can’t wrap his head around.

        • He doesn’t seem like the life of the party but all in all I think he has done a pretty good job of running the country. You can’t please everyone all of the time.

          • I agree on both points. Him not being the life of the party is spot on. He’s just that guy, we all know one, The guy who has never smoked weed or done anything like that because it’s just not who he is. Thats fine with me. But I also know this means he’s not the PM that will ever move from the status quo on those topics ( weed and prostitution). I also agree that he’s done a fine job of running the country.

            If what the media and liberals were saying before he was ever PM were even close to true this country would be in a civil war with Quebec, we would have given away our sovereign rights to the USA, have outlawed abortion and we would use the poor to fill the pot holes in the streets. I wish someone would do a documentary on the media bias in Canada. Whoever did it could use Harpers rise as the case study and for me its a slam dunk example.

            ..and the Canadian media like to cry foul and say he’s so cold to them and keeps all his gang so scripted and won’t give them the same access as the previous regime…He probably thinks the media is out to do him wrong and I don’t blame him one bit.

      • I’m not blaming Harper for everything I perceive is wrong, I just don’t trust Harper one minute to engage in a mature debate on this particular issue. To be precise, I don’t trust Harper on anything, period. As for the Liberals, if they ever get in and tackle said issue, well, let’s see what they come up with.

        • No doubt Harper has made mistakes but it just seems that in every newspaper article, regardless of the topic, some Liberal hack always finds a way to bash Harper or take cheap shots at him.

          Frankly I am very concerned for Canada’s future if the inexperienced Trudeau gets in. This guy has his head up his @$$ and is way out of his league. His father was a disaster for Canada when he was PM. He was responsible for decimating our Forces
          and opening the floodgates of immigration. No doubt Junior will try to one up his father.

          I would only vote Liberal if the likes of Paul Martin was the Party Leader as he was a man of integrity and honesty. He balanced the budget and left Canada in a very good financial position.
          Other than that we don’t have much to choose from.

  2. The libs had over a decade in power to address this serious issue. They did nothing about it. The PM and his regime made zero effort to progress the rights of these women. So I don’t believe that one party is any better than the other.

    Today the S.C. of Canada has opened the issues for up for debate and we can only hope that all the parties in Ottawa put our charter of rights top of the list when deciding the path forward and not the swing vote potential they can gain by being on one side vs. the other.

    As a young person out of school, I traveled the country with a high profile national campaign manager he once mentored me that there’s only 3 rules of politics;

    Rule # 1) Get in Power
    Rule # 2) Stay in Power
    Rule # 3) –See rule #1

    During our campaign training travels he also tried to tell me that all Newfoundlanders want is handouts from the gov’t. I really looked up to him and I almost came to tears as I protested his gross statements and caused a bit of a scene in the Halifax airport. My inital response was, statements like that is why harper doesn’t get any votes in NL. We never got along again. I never worked for him directly after that and several years later, with a simple phone call to the director he had me fired,only after we finally won our first minority.

    • To be fair, the overall attitude towards prostitution was a lot less humane in the 90s and early naughties, than it is now.

      • Hey Stephen, That may very well be the case. I was only 10-20 in the 90′s and grew up in a small town that had none to speak of.

        One response comes to mind from your comment….Following the “to be fair” logic….we haven’t seen a policy response from the gov’t yet so maybe just maybe all Canadians attitudes have improved towards prostitution since the 90′s….Liberal and Conservative people alike. I’d like to think so anyways.

        Cheers

  3. The Supremes just gave the Cons a wonderful Xmas gift – a perfect issue over which to whip up the outrage of their faithful, and to use as justification for a party fundraising campaign against yet another “enemy” – these immoral justices who are condoning sin.

    After all, the Cons are all about small, unobtrusive government in every respect except micromanaging the personal morality of others.

    • I agree with your sentiment on Conservatives, but disagree about this being a Christmas gift for them. Instead I suspect it is the equivalent of a lump of coal. The Harper Conservatives will makes themselves look like fools while coming up with a response to the SCC decision and they know it well. Harper is already wringing his hands at the prospect of what some of his right wing religious caucus members will say about this issue now that they are no longer in fear if him. I think this issue will seriously divide the Harper Conservative caucus and damage Harper almost as much as the cover up of the Harper-Wright-Duffy bribery.

  4. If it is legal in the future why would a sex trade worker need a bodyguard any more than say a physiotherapist. Does the sex trade naturally attract those violent types because it operates underground and because society guarantees shame in the mix. I have read some were that men are not actually paying for sex they can often have that in other ways that are more about imagination and effort call it seduction if you like, instead they are paying the woman to go away afterwards to spare them selves the cost in time and social skill required to engage in the more socially accepted ways of finding a partner. End the shame end the violence….maybe?

  5. The part that seems to legalize street solicitation is a bit concerning
    (I have no real issue with the other 2). Would the government still be
    able to regulate street solicitation? Would the government, for example,
    be able to designate residential areas, schools, churches, parks, etc as being
    prohibited areas? I would expect that the answer is ‘yes’, but it is not clear (at least to me).

    • Which part are you referring to? If anything, the law that was struck down encourages prostitutes to hit the streets (in particular, the “bawdy house” part).

      • I’m referring to the striking down of the prohibition on “communicate in public with respect to a proposed act of prostitution”. That I interpret to refer to street solicitation.

        • It would apply to that, but it’s easy to re-formulate the law to criminalize street solicitation. “Communicate in public” is very broad, much broader than would be needed for that. But the ball’s in the government’s hands now – it’s up to them to decide what their priorities are with respect to prostitution and what will pas muster.

  6. Prostitution should be illegal. They have no more right to safety than the guy stealing my wallet or bank account information. There should be public education against it as we have tried to do with drunk driving with fines of increasing severity if caught. It should not be a route to get into Canada. Instead there could be a regulated sex therapy industry for both men and women where the therapist received proper university level training and certification and was subject of controls so that the industry could not get entirely out of control and be run by criminal elements. These therapist could provide sex education that does not objectify women. Both partners in a relationship could be treated.

    • How many serial killers do you know that have specifically targeted pickpockets ? How many serial killer do you know that targeted fraudsters ?

      While I agree that the debate on whether prostitution should be legal or not and the type of legislation we want to have in Canada (i.e. Netherlands vs Sweden model) is one that we should have, to say that a group that has been empirically shown to have suffered great harms should have no right to safety is absurd.

      • A serial killer will find victims whether or not brothels are legal. That argument is not valid. They can find out who is a prostitute in any number of ways — such as following them home from a brothel. Picton picked up streetwalkers — who are unlikely to be hired at any brothel as was pointed out by the women’s groups who were against the legalization of brothels at the trial.

        If you are addressing the issue of violent sociopathic men, that is another issue that has nothing to do with the legality of prostitution. They beat up their wives as well. And their wives don’t have security guards. Probably their should be a public registry that lists the names and photos of abusive men — certainly the names of any men who have been convicted of spousal abusive or violence against women. Personally I wish they had one of the men charged with abuse but that might be going too far.

    • How is openly selling a service the same thing as stealing from you?

      • If it is my husband they are taking money from they are stealing from me and my kids. More indirectly they are not paying taxes. Even if they were legalized I am fairly certain most of the money would be in ‘tips’ which they would not claim much as it works now. If they are non-Canadian they are not paying taxes since they are not entitled to work in Canada. And almost all of the visitors/esl students working as prostitutes stay in Canada through marriage fraud which is a crime. They are never deported. The immigration system can’t handle the numbers of fraud cases and has actually had to impose a limit of 5 years between marriage sponsor ships for citizenship. They are also severely messing up the gender ratio. And most of the body rub parlors here in Vancouver are not run or owned by Canadians so there is no benefit for Canada or Canadians at all. Just check Craigslist or any of the Chinese sites advertising prostitutes in Vancouver. That isn’t even touching on child prostitution, human trafficking, money laundering, gang activity and all the corruption that goes with it.

        • So, you don’t want open competition, is that correct? You want his money for yourself?

  7. I don’t trust the Conservatives as far as I can throw them on this issue. They’ll turn this into more partisan pandering to their ever shrinking base and use the issue as a fundraising opportunity.

    I thought libertarians flocked to the Conservative Party? I’m asking myself why since they are diametrically opposite of most libertarian ideals.

    • Can’t. wait to open a brothel next to NDP HQ.

      • Bring your strap on sexy.

      • Oh for crying out loud! Duh! We’d have Red Light districts – obviously. A regulated sex industry could not open a brothel next door to the NDP office or next door to a school or in a shopping mall.

        That’s the point of regulation. The way it is now anyone can open a brothel anywhere they can hide it.

      • open one as close to Justin treadeas quebec residence as possible, also a smoke shop

  8. Are Harper’s challenges to law and the constitution frivolous publicity pursuits at taxpayer expense? This is like reliving America’s 1930′s prohibition, reefer madness and tuba tooting moral marches bent on driving Satan back to Hell.
    Who the hell does Harper think he is, Elmer Gantry?
    And…’helicopter Pete’, at the head of the march?

    • Hope your wife starts her part time job soon

      • sounds like someones spent some time in the pen

        • don’t change subject now where is wifey going to start her new career, or typical letflib attitude is prostitution ok for thee and not for me

  9. Wow this will solve the serial killer epidemic. Talk about using a sledge hammer to kill a flea. Wonder how they will solve the human trafficking trade. no worry only unemployed university grads will embark on this new career path in Canada. Revenue Canada can’t wait to audit those boobs sorry books.

    • If you have any better ideas — preferably ones that have been proven to work — I for one am all ears.

      • What exactly have they improved with this decision. As I recall the last serial killer was in charge of an air base. Are the supreme going to fix that next. Bernardo was an accountant, are they going to ban them. Leave it alone it ain’t broke. Pimps and gangs will overun the country with trafficked women like in Germany. 200,000 more hookers and counting. Some solution.

        • accountants should be banned.

  10. None of the things mentioned are examples of the constitutional dialogue theory not working. If a government does nothing and lets a struck law stay that way, they simply consented to what the court found. Legally the final word is always with the elected government*, if they choose not to use it the system hasn’t broken down. Also worth noting is that it’s by no means surprising or unusual to allow government to redraft laws that have been struck down, as long as they meet constitutional requirements.

    *but not always the particular government affected by the ruling, and sometimes they would need more than one government to alter the law to the way they would like it.

  11. Of course legalisation and safer working conditions are the
    same thing. Regulation and legalisation will bring safe conditions and
    tax revenue.

    Imagine a brothel next door to you. After the novelty
    passes, and you have bored yourself with hundreds of ‘freebees,’ offered
    in exchange for your acquiescence, you may wish it wasn’t on your
    street, quite so close. The government can control this by creating a
    licensing system which will set specific conditions where businesses can
    operate, under what safety conditions, and define financial standards,
    means of collection, and insurance liability.

    Only licensed prostitutes would be allowed to work and
    their remuneration would be taxed, which would allow the government to
    share in the revenue and profits of the operation. So, the police would become publicly funded security for
    the brothels, pimped by the government.

    Unlicensed operators would be prosecuted, naturally, so
    vice squad officers will keep their jobs. One enforcement problem will
    be traded for another.

    There is no alternative to licensing to ensure the safety
    of prostitution and prevent brothels from setting their businesses near
    high schools, or in neighbourhoods where ‘nice families’ may resent the
    reduction in property values that may arise when incessant road traffic
    and pedestrian noise affect the community; red light districts, an old
    idea, are fine as long as you don’t live beside one.

    Prostitution is almost legal, and courses may be offered
    soon at a community college near you. And I venture to suggest, if
    community colleges provide courses, they will flood the market with too
    many prostitutes which will depress prices and the tax revenue
    collected, which will prompt prostitutes to form unions which will
    prompt governments to legislate an end to their strikes to keep tax
    revenue flowing and keep the numbers of hookers low, which will create,
    over time, thousands of unemployed hookers, who will turn to working
    outside the licensing system which will result in intensified law
    enforcement, involving arrests, and court proceedings in which the
    public questions the justice and efficiency of the system.

    • There are some things that just cannot be stamped out because we want it to go away. Prostitution is one of them. It is called “the oldest profession” for a reason. Once people accept that then common sense legislation should be enacted to deal with it. The Netherlands have followed this approach and should be looked at closely to see what is working and what is not working.

  12. Who in their right mind would pay to have sex with the two women in that picture? Yikes.

  13. I’m not seeing very much being written about this issue and the division of powers, but I suspect that if one wanted to regulate prostitution without the heavy hand of the criminal code, it would be a matter of property and civil rights and therefore under jurisdiction of the provinces.

    • But also Trade and Commerce. Probably a classic dual jurisdiction.

      • The federal trade and commerce power is confined to (1) interprovincial or international trade and commerce; and (2) general trade and commerce. General trade and commerce cannot be concerned with a particular industry.

        A lot of people are talking about the potential of a licensing system. See Insurance Reference, [1916] 1 A.C. 588, where the judicial committee of the Privy Council refused to uphold federal jurisdiction over insurance merely because the industry spanned the country. That the industry “spanned the whole country”, was noted, but, Viscount Haldane nevertheless laid down that, “the authority to legislate for the regulation of trade and commerce does not extend to the regulation by a licensing system of a particular trade.”Any licensing program clearly would fall under the provincial head of power.

        Legislation determining where “bawdy houses” would be similar to the situation in Bédard v. Dawson where the impugned legislation prohibiting “disorderly houses” was upheld because it was grounded in property rights – duty to protect neighbouring property holders – and concerned with the control and enjoyment of property and the safeguarding the community from the consequences of an illegal and injurious use being made of it.

        • Some quick reading on my part appears to confirm your assertion. I withdraw my comment.

  14. W

    hat the government needs is a notwithstanding act that they can call upon, whenever the courts decide t

    hat they are in total charge in the country

  15. The “solution” is to make being a john illegal. Make them ticket-able offenses with large monetary fines. And bog down the brothels in regulatory paperwork, like is done with the gambling industry.

    If the johns want to fight their tickets in court, courts records are public.

    It was always a moronic idea to focus on the women.

    • that’s what some CPCers are saying, but it’s quite shortsighted and stupid.

  16. This is not an easy issue and I doubt very much a fix will be found that most people will like. Of course, we want to have all Canadians, no matter what they do for a living, to be as safe as possible but there are so many factors to consider. The old ”legalize and tax it” sounds fairly simple up to the point when someone is going to try just that. Across the country, many people will oppose; you have never seen a ”not in my town” attitude of this magnitude before.

    And there is the issue of drugs. What is the percentage of people doing this work because they are hooked on hard drugs? How do we handle these people? A committee in parliament with members of all parties advised by some heath experts could have a go at this and try to come up with suggestions but if anyone out there think there is ”one” fix all solution, they are not looking at the whole problem.

  17. Does the concept of men being able to afford a safe, affordable oral sex experience register on anybody’s brains? All this talk about protecting women…a lot of prostitutes are thieves, they’re a really rough bunch and far better connected to organized crime than your average John.

    Sex is a human right, a medical need; prohibiting prostitution in any way harms my Section 7 security of person rights. We should be ensuring all Canadians have access to safe, affordable sex, not looking for yet another way to make mens’ lives miserable.

  18. The main group trying to keep prostitution illegal is women who are not openly engaged in it. Decriminalization would erode their worth, and drive the market into chaos, as men would be freed from the gynocentric tyranny of the Matriarchy. Supply & demand.
    We need this legalized ASAP.

Your email address will not be published. Required fields are marked *