Parliament, not judges, should decide

Imagine a nation with rampant open, but unlawful, prostitution, a significant number of the poorest prostitutes coming from aboriginal backgrounds often with drug and alcohol addiction and a constant undercurrent of violence and disease running through the sex trade.

Imagine such a nation where resolving the problems of prostitution are to be decided by five or perhaps fourteen individuals none of who have background in drug addiction, law enforcement, public health or prostitution.

You have imagined Canada.

This week Canada's prostitution laws are being considered by five judges of the Court of Appeal for Ontario. Their decision will likely be reviewed by nine more judges of Canada's Supreme Court.
The judges are Canada's top legal minds. As finders of the truth between two incompatible stories these judges are without rivals. They are, all of them, highly trained and skilled in law.

But none of them has expertise outside the law.

And that's a problem.

Since the 1980s Canada's biggest social questions have been decided by judges. Abortion, gay marriage, medical marijuana, Canada's obligations to citizens imprisoned abroad are all highly contentious matters that were not resolved by Parliament but rather by judges.

In fairness, judges did not seek to make these decisions -- rather the creation of a Charter of Rights and Freedoms thrust the decision making process on them. But Parliament (and that includes Conservative and Liberal governments) should have made the decisions. Yet Parliament consistently avoids making decision on tough social issues.

Prostitution is a good example of the failure of Parliament to act.

Prostitution is legal in Canada but almost everything related to prostitution is illegal. As a result, prostitutes carry on a secretive trade operating outside legitimate business practice; prostitutes face violence daily and are more or less unable to avail themselves of the usual protections others take for granted.

Aboriginal women are especially vulnerable and are often the victim of unsolved killings. Yet despite the violence prostitution is widespread. Police in urban centres turn a blind eye to brothels operating under the thinnest of disguise; only underage prostitution attracts significant police attention.

In such a situation Parliament should act.
If prostitution is to be illegal, vigorous new legislation banning the act itself, together with funding to give prostitutes alternatives and funding to prosecute widely, is needed. Such spending, of course, is unpopular for what many see as a victimless crime and, regardless, prostitution will continue to some degree.

On the other hand, legalizing and regulating prostitution would require government to make the unpopular step of saying, in some sense, prostitution is acceptable to Canada.

The political downside of acting in any way is high and leaving the matter to judges costless politically. And so judges decide what is a serious national social issue.

The trouble is by avoiding the tough decisions Parliament does not speak for Canadians. Democracy says the will of the people should usually govern -- but that's not what happens when judges decide social issues. Judges are there as necessary to decide matters but it is Parliament that should act for Canada.