Canada’s Supreme Court Strikes Down Anti-Prostitution Laws

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CANADA’S SUPREME COURT STRIKES DOWN ANTI-PROSTITUTION LAWS

The Canadian Supreme Court unanimously held some of Canada’s anti-prostitution laws to be unconstitutional. The court has stayed its decision for a year, giving the government that much time to come up with new legislation. My guess is that the government in Ottawa will choose to do nothing and to let the provinces handle the matter.

To be clear, sex for money in Canada is not illegal; no law on the books specifically forbids it. The situation there is rather libertarian — what happens between consenting adults in private is a matter for the parties involved and no one else. The three specific laws that the court struck down 9-0 dealt with the people who make a living “protecting” sex workers. One of the laws forbade operating a brothel. Another prohibited anyone from earning a living working for a prostitute (for example, a driver, a bodyguard or a bookkeeper). The third banned public communications about acts of prostitution — advertising, if you will.

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For anyone who has been around the block even once, the laws were clearly targeting pimps and the exploitation of sex workers. However, Chief Justice Beverley McLachlin (yes, Canada’s Chief Justice is a woman) noted, “The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers or bodyguards … The living on the avails provision is consequently overbroad.”

The Conservative government of Prime Minister Stephen Harper would like to focus on things like international trade and the XL oil pipeline, but the court has handed it this problem. There are three possible outcomes here. Last month, the Conservative Party convention passed a resolution that said the government “shall develop a Canada-specific plan to target the purchasers of sex and human trafficking markets through criminalizing the purchase of sex as well as any third party attempting to profit from the purchase of sex.”

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The PM himself said back in March 2012 when the Ontario Court of Appeal opened this can of worms, “We view prostitution as bad for society and we view its effects as particularly harmful for our communities and women, and particularly for vulnerable women, and we will continue to oppose prostitution in Canada.” That would appear to be a pretty clear indication of where the government is going.

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Alternatively, the government could do nothing at all and just let things progress as they will. Were the New Democrats or the Liberals in power, that might have happened. Given what Mr. Harper and his colleagues have said, though, doing nothing isn’t an option.

The third path to take is a solution unique to federal nations. Mr. Harper could simply say that there are certain standards that the federal government wants, but to deal with the actual regulation of the sex trade, he would prefer the provinces address the matter. As in American conservatism, the Canadian variety has a faction of moralists and a faction of libertarians, and the two will clash on this. And like America, Canada’s politics vary as one moves across the country. Indeed culturally, the boundaries run the wrong way — San Francisco and Vancouver belong in the same nation in a way San Francisco and Oklahoma City or Vancouver and Winnipeg do not.

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While Mr. Harper may want a national law, he risks splitting his party over an issue that is of secondary importance at best if he pursues one. Moreover, getting a bill through Parliament in 12 months if you’re starting from square one is not easy. Public discussion and hearings, actually drafting of the legislation, Commons committee votes, balloting in the House, then the bill goes to the Senate, eventually it gets Royal Assent from the Governor General. The parliamentary schedule may be clear right now, but it’s still a daunting project.

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Letting the 10 provinces and three territories decide things will allow him to satisfy the small-government crowd, while permitting the moralists the opportunity to have their way where they have the numbers. And he can focus on getting the XL pipeline approved by the Americans.

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