Today's prostitution decision

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

Today the Ontario Court of Appeal legalized brothels in Ontario. While the Court stayed the effect of its decision for a year, few police or prosecutors will actively prosecute a law that has been declared invalid; open prostitution seems inevitable.

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. Once an issue gets to the Courts, the legislature runs for cover; “we won’t reopen the debate” is a mantra, even when, to be honest, there never was any debate to begin with.

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. However Parliament consistently avoids making decisions on tough social issues.

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

Prostitution is legal in Canada but, at least until now, almost everything related to it was illegal. As a result, prostitutes carried on a secretive trade operating outside legitimate business practice; prostitutes faced violence daily and were more or less unable to avail themselves of the usual protections others take for granted. Prostitutes were peculiarly subject to violence and could not easily appeal to police for help. Aboriginal women were especially vulnerable and were often the victim of unsolved killings. In light of the violence and abuse of some of Canada’s most at risk women, the need for serious legislative reform was obvious.

But legislative reform has not happened. As the Court of Appeal commented, despite promises in Parliament since 1985 no comprehensive legislative scheme to deal with prostitution has even been considered in decades.

Yet prostitution is widespread. The cities, by default, tend to regulate prostitution through licencing massage parlours and the like but such regulation at best keeps streets clear and offers little or no protection to prostitutes. With a removal of criminal laws against brothels the only regulation we are likely to see is municipal.

But municipal regulation, limited as it inevitably must be, is not sufficient. Prostitution is a major social concern bringing together issues of gender equality, aboriginal abuse, health, family law and taxation. The Court of Appeal for Ontario, while striking down the criminal ban on brothels calls out for legislative intervention. The Court expressly says:

One important point before we begin. Prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court’s role to engage in that debate. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land. While we have concluded that some aspects of the current legislative scheme governing prostitution are unconstitutional, it remains open to Parliament to respond with new legislation that complies with the requirements of the Charter.
…

We should not be taken as holding that any bawdy-house prohibition would be unconstitutional. It would be open to Parliament to draft a bawdy-house provision that is consistent with the modern values of human dignity and equality and is directed at specific pressing social problems, while also complying with the Charter... .


The Court of Appeal asks for legislation. In such a situation Parliament should act. 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, 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 exists to deal with contentious social issues, to be the voice of the nation. Parliament should act for Canada.