By Dennis Taylor
OTTAWA, Canada – Canada’s Supreme Court issued a rare unanimous decision on Friday, striking down the nation’s anti-prostitution laws.
In addition, the court set a one-year limit on the amount of time Parliament may take to replace any portions of the laws it deems necessary to replace.
“It is not a crime in Canada to sell sex for money,” Chief Justice Beverley McLachlin explained in the court’s decision, which upheld a similar lower-court ruling in a case brought by sex workers.
In fact, Parliament’s defense of the laws as necessary to control the “public nuisance factor” of sex work rang hollow with the court. As McLachlin noted in her opinion, banning brothels and outcall scheduling services, as well as prohibiting public communication by sex workers all represented “grossly disproportionate” responses to a perceived problem. Criminalizing activities analogous to those other legal industries rightly consider support services could jeopardize sex workers’ safety.
“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” the Supreme Court decision states.
In order not to create an “open season” for prostitution in Canada, the Supreme Court delayed voiding the current laws for one year. Enforcement, however, has been enjoined. During the coming 12 months, Parliament may replace the current laws with others that conform to Canada’s Charter of Rights and Freedoms, the court noted.
The Supreme Court decision predictably gave rise to widely diverging reactions.
“Now the government must tell Canadians, all consenting adults, what we can and cannot do in the privacy of our home for money or not,” said Terri-Jean Bedford, one of three sex workers who filed the initial challenge. “And they must write laws that are fair.”
Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, expressed the other side of the coin. The organization advocates for women and girls at risk in the justice system — with the notable exception of sex workers.
“It’s a sad day that we’ve now had confirmed that it’s OK to buy and sell women and girls in this country,” she said. “I think generations to come — our daughters, their granddaughters and on — will look back and say, ‘What were they thinking?’”
Peter Berton, YNOT.com’s Canadian correspondent and an observer of the case’s progress through the courts since its inception, indicated that the Supreme Court’s decision may have sparked more questions than it answered.
“The Conservative government of Prime Minister Stephen Harper has avoided tricky issues, such as opposing legal abortion, precisely because they don’t think they can win on them,” Berton said. “Given that the government is unpopular and an election is looming, opening a debate about prostitution laws is the last thing they want to do — especially since prostitution itself has never been illegal in Canada.”
Options for the future abound, he added, but so far no one has proposed a solution with which all sides agree. Parliament could decide to decriminalize sex work and support services altogether. On the other hand, legislators may decide to overturn centuries of Canadian tradition and follow the U.S.’s example by criminalizing not only the actions of prostitutes and their support staffs, but also their clients.
“The question is, what does the Conservative government do next?” Berton asked. “When the abortion law was struck down, the issue proved so politically sensitive that the government simply avoided tackling it, which is why abortion is now widely available in Canada.
“It may seem unimaginable for the federal government to follow the same course on prostitution,” he continued. “But there’s no real political upside for Prime Minister Harper to open up this debate, especially when his party is already wracked by scandals and down in the polls.”
