Parliament, not judges, should decide

Once again judges have been called in to decide social policy.

On Monday, the Ontario Court of Appeal will decide whether a Superior Court decision that effectively legalized brothels is correct.

The judges of appeal are top legal minds without doubt. But their training is in law and not social policy. In any reasonable societal arrangement judges would decide individual cases based on laws passed by legislators whose job it is to decide social policy.

But in Canada that’s not the way things work.

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

Judges say, with some justification, that they did not choose to make these social policy decisions. Rather, judges have to rule on social policy because cases come before them and those cases must be decided consistently with Canada’s Charter of Rights and Freedoms. There is truth to that argument, but Parliament is also governed by the Charter of Rights and Freedoms; if there are unconstitutional laws Parliament should address them. But Parliament (and that includes Conservative and Liberal governments) 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. And there is also no doubt that street prostitutes are peculiarly subject to violence and cannot easily appeal to police for help because of the laws against soliciting. 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. The cities tend to regulate prostitution, in an offhand way, through licencing massage parlours and the like but such regulation at best keeps streets clear and offers little or no protection to prostitutes.

In such a situation Parliament should act. The violence against women commonly seen in prostitution is a national disgrace.

But to act Parliament must make a contentious decision.

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. Parliament should act for Canada.