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What the SCC Actually Said About Prostitution

Posted by Matt on December 20, 2013         Tagged with: prostitution, charter, scc

So the big news of the day is that the Supreme Court of Canada has released their ruling in Canada (Attorney General) v. Bedford and has struck down a number of criminal offenses related to prostitution for being unconstitutional.

You are going to read a lot of headlines, tweets and Facebook status updates declaring that the SCC just legalized prostitution in Canada. That is wrong. That is not what happened today. It's wrong because prostitution wasn't illegal in Canada in the first place. I'm going to go ahead and repeat that, because it seems unbelievable and it's a point that's going to get glossed over in the media: it was not, and is not, a crime in Canada to sell sex for money.

In case you doubt my legal chops, here's the very first sentence of the very first paragraph of the judgment, straight from the mouth of the SCC:

It is not a crime in Canada to sell sex for money.

Believe me now? Good. Now that we have that out of the way, we can focus on what this case was actually about. While it is not illegal to sell sex for money, it is a criminal offense to engage in other prostitution-related activities. Namely:

So it's perfectly legal to be a prostitute. You just can't run, live in or be found in a brothel, make money through other people's prostitution or solicit a prostitute or a potential client. The laws are clearly designed to target pimps, johns and brothel keepers. Why Parliament chose to go this route instead of just criminalizing prostitution itself, I don't know; as the SCC noted: "This reflects a policy choice on the part of Parliament".

These laws, like all laws passed by Parliament, must respect the constitutional rights provided to all Canadians by the Charter of Rights and Freedoms. Of particular relevance to this case was section 7 of the Charter, which provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Any law which does not respect this right, and the others provided by the Charter, can be struck down the the courts. And that brings us to the crux of this case. The prostitutes involved in the case argued that the three laws discussed above make it more dangerous for them to practice their perfectly legal profession, and thus deprive them of their right to life, liberty and security of the person. And the SCC agreed.

(Note that this case went through multiple courts before landing on the SCC's desk. A lot of what the SCC "said" today was just them agreeing with things other judges had already said).

I'm sure the laws were drafted with the best of intentions, but they had some unfortunate side effects. The prohibition on brothels prevented prostitutes from establishing safe, controlled environments in which to work; they couldn't even bring clients back to their own home. The SCC explained it thusly:

The practical effect of s. 210 is to confine lawful prostitution to two categories: street prostitution and out-calls... In-calls, where the john comes to the prostitute’s residence, are prohibited. Out-calls, where the prostitute goes out and meets the client at a designated location, such as the client’s home, are allowed. Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public...

The prohibition on living off the avails of prostitution had an extremely broad reach. This law may have been intended to target pimps, but courts had interpreted it to cover any services provided to a prostitute. This meant prostitutes couldn't hire bodyguards or drivers.

The prohibition on communicating didn't just make it more inconvenient for prostitutes to do their job. The Court agreed with the trial judge that:

[F]ace-to-face communication is an “essential tool” in enhancing street prostitutes’ safety (para. 432). Such communication, which the law prohibits, allows prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they face (paras. 301 and 421)... [T]he communicating law has had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable... By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses.

The government argued that it was not these laws that created the risk to prostitutes: it was their choice to be prostitutes that created the risk. The SCC was not kind to this argument.

It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

Simply put, just because a person chooses to engaged in a risky activity, that doesn't give the government free reign to pass laws that increase the risk.

Having decided that these laws violated the section 7 Charter rights of prostitutes, the SCC was left to decide what to do about that. Courts are not required to strike down laws that violate Charter rights. Section 1 of the Charter states that "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Your Charter rights are not unlimited; the government can infringe upon them in certain situations, if the harm prevented by the law is grave enough and the law is drafted carefully. So was this one of those situations?

No. No it was not. The Court conducted a separate analysis for each law and each law was struck down on slightly different grounds, but the gist is that the harms these laws created were worse than the harms they aimed to prevent. If you want more detail about how this case was decided, I encourage you to read the judgment. The SCC often takes a big picture view of things, which makes their judgments surprisingly readable and this one contains a nice summary of how the Court decides whether or not to strike down a law for infringing upon Charter rights.

The SCC was reluctant to leave a void where these laws used to be. They emphasized that this decision does not mean that Parliament cannot regulate prostitution: they just have to do so in a way which does not create unnecessary risk for prostitutes (or anyone else for that matter). And they decided to give Parliament some time to craft a new regime by suspending the invalidity of the laws for one year.

This is one area I wish the Court had more fully explained. This was a unanimous judgment in which the Court emphasized again and again how these laws create unnecessary risk for people engaged in a legal profession. Yet these laws will still be enforced for another year. And the Court's rationale for suspending the invalidity of the laws was this:

On the one hand, immediate invalidity would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it. How prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated. Whether immediate invalidity would pose a danger to the public or imperil the rule of law (the factors for suspension referred to in Schachter v. Canada, [1992] 2 S.C.R. 679) may be subject to debate. However, it is clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians.

That's it. A single paragraph to justify placing the lives of thousands of Canadians at risk for another year. I can't be alone in thinking prostitutes and everyone else who depends on the courts to protect their rights (which is to say, all of us) deserved more.