In a landmark decision handed down Dec. 20, the Supreme Court of Canada (SCC) struck down prostitution legislation, citing a violation of constitutional rights. Chief Justice Beverly McLachlin, on behalf of the unanimous court, wrote, “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.” The decision also stated that, “The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity [. . .] They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks.”
The SCC’s decision is the right one. Presumably, it will be unpopular with those misinterpreting it as judicial activism. Nonetheless, taken on its merits, the decision meditates on the Parliament’s overstep of its limits, and how this oversight can be detrimental to society’s most vulnerable. In the eyes of the Supreme Court, the question isn’t over the legality of prostitution; it’s concerned over whether parliamentary legislation is infringing upon the constitutional freedoms of prostitutes.
The Court has pointed out that in many circumstances, sex trade workers don’t necessarily practise their profession of their own volition—this makes them vulnerable. The Court’s decision also stated that choosing to practise prostitution doesn’t preclude one from the reasonable enjoyment of safety guaranteed by the Federal government.
The morality of prostitution is moot. The Court’s decision avoids characterizing sex commerce one way or the other—the legality and morality of a given subject shouldn’t be improperly conflated. What is immoral, however, is a government that relegates the safety of the most vulnerable members of society to the background. This decision is important because it reminds Harper’s government, and society at large, that the state must prioritize the protection of its citizens, especially those most exposed to violence. Furthermore, sweeping laws are imprecise and unhelpful. Laws must be simple and specific, and directly target the issues at hand, rather than tangential elements.
The SCC’s ruling isn’t the end of discussion. Perspectives opposed to the decision are also worth considering. The possible decriminalization of pimps is a valid concern voiced by the Native Women’s Association of Canada. Perhaps the Harper government will ultimately opt to criminalize aspects of prostitution. That is their right. The SCC’s decision doesn’t rule out this option, nor should it. However, Harper’s tendency to rush legislation needs to be sharply curtailed in this instance. Prostitution is complicated; it includes many players and participants coupled with varying personal circumstances and often violent outcomes. Balancing the tenuous connections between those involved and the communities that prostitution affects requires a delicate touch—not a characteristic of the Harper administration. Future legislation mustn’t overstep its boundaries, and, above all, must prioritize the protection of the vulnerable. Otherwise, what’s the point?
