The Ontario Prostitution Charter case is a good example of the politicization of the courts.
The suggestions made regarding the legalization of some facets of prostitution are eminently reasonably. They are precisely the sort of thing a parliamentary subcommittee ought to consider in proposing legislative reform. That said, no likely federal government, of any political stripe, is likely to support legislative reform of the prostitution laws – there’s just no political upside.
As a result, the matter heads to the Courts.
In order for the Courts to grant a remedy there must be a constitutional breach of some sort and the claim of Charter breach rests on the assumption that there is a right to sell sexual services. Absent such right, limitations on selling sex are not constitutionally questionable. But the Charter does not protect economic rights and so any finding of constitutional breach necessitates a judge reaching to find a remedy that otherwise is not there.
Unfortunately, the Courts do, from time to time, reach for a remedy where it is clear the legislature will not act. This leads the legislature to become even less likely to act on politically sensitive matters and to wash their hands entirely of legislative reform.
A twisted system indeed.
4 comments:
Thank fate for the court system.
for example: Women would still be forced into unsafe back alley abortions if it wasn't for the courts. (in Canada and the USA)
I see it as a very necessary element of a system where politicians are rewarded (by voters) for lying and doing nothing.
In order for the Courts to grant a remedy there must be a constitutional breach of some sort and the claim of Charter breach rests on the assumption that there is a right to sell sexual services. Absent such right, limitations on selling sex are not constitutionally questionable.
The claim of Charter breach here will not rest on the assumption that there is a freestanding right to sell sexual services. The challenge likely rests on a s.15 claim, although I can't be sure because all of the news reports that I have read on the challenge omit the section or sections under which it is being challenged.
Also, it should be noted that Canadians are allowed to sell sexual services. The laws in place regarding prostitution outlaw soliciation and bawdy houses, not the sale of sexual services.
Wow, can`t believe James Morton didn`t get this right. He could have asked for the court documents and read them instead he chose to assume what the case is about. 1982 Charter of Rights and Freedoms made judges custodians of public safety. While selling sex is legal, the construct of the three sections challenged makes it unsafe. The law must assume that people will engage in a legal activity and be structured accordingly. I don`t agree that there`s no political upside to taking moral preferences out of the criminal code. There was an upside to ending prohibition of alcohol, gay sex and adultery. It did not condone these activities, it simply realized they don`t belong in the Criminal Code. People are tired of being told hypocritically by police and politicians to watch for moral bogeymen, and spending police resources on lifestyles.
Wow, can`t believe James Morton didn`t get this right. He could have asked for the court documents and read them instead he chose to assume what the case is about. 1982 Charter of Rights and Freedoms made judges custodians of public safety. While selling sex is legal, the construct of the three sections challenged makes it unsafe. The law must assume that people will engage in a legal activity and be structured accordingly. I don`t agree that there`s no political upside to taking moral preferences out of the criminal code. There was an upside to ending prohibition of alcohol, gay sex and adultery. It did not condone these activities, it simply realized they don`t belong in the Criminal Code. People are tired of being told hypocritically by police and politicians to watch for moral bogeymen, and spending police resources on lifestyles.
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