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Canadian Supreme Court Strikes Down Laws Against Prostitution

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The Canadian Supreme Court has ruled that the laws against prostitution in our neighbor to the north are invalid under Canadian law:

The Supreme Court of Canada has struck down the country’s major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadians’ basic values.

Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.

Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” she wrote.

“The prohibitions all heighten the risks. . . . 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 court suspended its ruling for one year to give Parliament time to respond. The ball is now back in the court of Justice Minister Peter MacKay, who needs to decide whether to adopt new prohibitions and if so, how to ensure those prohibitions do not fall afoul of the court.

Mr. MacKay suggested in a statement that the government w till continue to look at prohibiting prostitution in some fashion. The government is “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons,” he said.

The court suggested Parliament has wide options for continuing to criminalize prostitution-related activities, even perhaps maintaining aspects of the existing laws. It said the prohibitions on street soliciting, brothels and living off the avails are all intertwined and have an impact on one another.

“Greater latitude in one measure – for example, permitting prostitutes to obtain the assistance of security personnel – might impact on the constitutionality of another measure – for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.”

To stand, any new laws would have to “take seriously the safety concerns of people who are engaged in sex work,” Elaine Craig, a law professor at Dalhousie University, said.

The government has a wide set of options. “As far as I can tell there is no constitutional bar to prohibiting the sale of sex for money provided the harm of the law doesn’t grossly outweigh the federal government’s objective in adopting it,” Prof. Craig said.

Not being at all familiar with Canadian law, I’m not really in a place to comment on the legal aspects of the Court’s decision, but it does appear that this is not necessarily the beginning of a Canada with legalize prostitution in any sense, even in the limited and rather regulated sense that it exists in certain parts of Nevada. Based on how the Court ruled, though, and depending on how the government decides to proceed based upon this decision, it might certainly be possible that this kind of system could eventually end up in some part of the country. The most significant part of the decision, for example, seems to be the Court’s recognition of the rights of “sex workers,” something that at least implies the idea that the government’s right to prohibit sex-for-money transaction may in some circumstances be outweighed by the rights of individuals to make the choice to do what they wish with their bodies. For that reason alone, it will be interesting to see how this matter proceeds forward.

All of this, of course, brings up the philosophical question of whether prostitution ought to be legal at all, whether in Canada or anywhere else. The libertarian answer, of course, would be that women ought to be free to engage in any profession they wish and that individuals ought to be free to engage in any voluntarily transaction they wish, as long as there isn’t force or fraud involved. The traditional objections to legalization are that that prostitution is often a profession that women are forced into, often when they are underage, and that it involves a significant amount of violence, force, and victimization. Much of those negative impacts, of course, are arguably an outgrowth of the fact it is illegal in most places. If you look at places where prostitution is legal, such as Nevada and certain places in Europe, many of those negative aspects of prostitution disappear for the most part, especially if there at least some regulation involved that is designed to ensure the health and safety of the women involved, and to ensure that people under 18 are not being victimized. The most significant point, though, seems to me to be that we are talking about what is called, fairly accurately, the world’s “oldest profession.” Whether it is legal or not, there is seemingly no place in the world where it doesn’t exist. Indeed, it’s even been found to exist among primates who have been taught how to use money.  Given all of this, one wonders what the value in trying to ban the practice actually is.

 

 

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. john personna says:

    Bad monkeys!

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  2. Just Some Guy says:

    Oh ! Canada !

    Oh oh oh OH OH OOOOOohhhHHHHHH!!!

    Yipee !!!

    (Too soon? It was good for me!)

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Surreal American says:

    The libertarian answer, of course, would be that women ought to be free to engage in any profession they wish and that individuals ought to be free to engage in any voluntarily transaction they wish, as long as there isn’t force or fraud involved.

    Ban pimps.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. JKB says:

    Prostitution is like bribery. It is only illegal when it involves explicit quid pro quo. As long as there is some non-contractual haziness in the transaction it is legal.

    I suspect it is the market nature of illegal prostitution that offends. It is the forming of a contract that upsets.

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  5. Hal_10000 says:

    Prostitution was legal in Canada. What was banned were some of the instruments — making a living off of it, having a brothel etc. so that it was effectively outlawed.

    Doug, you should read the debate they just had at Cato Unbound on this subject, where they get into a lot of the legal and other issues surrounding this. Decriminalization is the only logical path I can see.

    Like or Dislike: Thumb up 2 Thumb down 0

  6. grumpy realist says:

    @JKB: or to be totally sardonic, prostitution makes obvious the “sex in exchange for money and protection” that is the stated quid-pro-quo logic underlying traditional marriage roles.

    As one prostitute said to an outraged society matron: “the only difference between what you and I do, honey, is that I get a fur coat out of it.”

    Like or Dislike: Thumb up 6 Thumb down 0

  7. john personna says:

    @grumpy realist:

    The hierarchy (on both sides) should be based on fidelity. Wife > mistress > prostitute.

    Fidelity is a good thing.

    Like or Dislike: Thumb up 1 Thumb down 1

  8. stonetools says:

    Canada joins Australia, New Zealand, Germany and quite a few perfectly civilized societies that permit legal prostiution. Hopefully the USA will see reason and join that group.

    Like or Dislike: Thumb up 5 Thumb down 0

  9. rudderpedals says:

    @Hal_10000: What was banned were some of the instruments

    The toys?

    Like or Dislike: Thumb up 1 Thumb down 0

  10. john personna says:

    @stonetools:

    Why? I assume the monkeys who want to behave badly can afford a plane ticket. Or are already in Thailand. I see no reason to risk social fabric here, and certainly no reason that legal prostitution would strengthen social fabric here.

    Like or Dislike: Thumb up 1 Thumb down 2

  11. Liberal Capitalist says:

    @Doug Mataconis :

    …one wonders what the value in trying to ban the practice actually is.

    Really, I suggest it should be:

    …one wonders what the value in trying to ban the ANY practice actually is.

    That would be the Libertarian view, right?

    Yet, it is often the conservatives amongst us that enjoy banning nearly everything they can, and recently (and continuously with an attempt to overreach) on many things they can’t.

    Would I wish to visit a free market Canadian Prostitute?

    I don’t know. Likely not (as I am married).

    But individual freedom should offer me that choice and privilege, if I wish.

    Ah, but freedom has a cost, and it looks like here…

    http://www.thestar.com/news/insight/2011/03/25/mallick_welcome_to_torontos_prostitution_island.html

    … is an argument for taxation.

    I wonder what they will count. :)

    Like or Dislike: Thumb up 2 Thumb down 0

  12. grumpy realist says:

    @john personna: But is fidelity only for the woman, or something demanded of the man as well?

    Looks to me like it was the standard case of “one set of rules for the guys, another set of rules for the girls.”

    (I’d allow for legalized prostitution provided the laws allowed for far more protection of women. The fact is–as long as prostitution is the quickest way for an unskilled woman to get money, there will always be people to do it. Raising up the safety net, jobs training, and the minimum wage would probably be the best way to cut down on prostitution. Make it so only those who really want to be sex workers because that’s the way they roll get into the game. )

    Like or Dislike: Thumb up 6 Thumb down 0

  13. stonetools says:

    @john personna:

    I’m in favor of encouraging fidelity through moral sausion, PSAs, etc. THere’s a lot of support for fidelity in the USA already-every love song celebrates it.
    The problem with your argument, John is that we have emprical evidence that we can have both cohesive societies and legal prostiution. Take the example of Germany. Who believes that Germany is anything but a cohesive society?

    That said, I understand that a society with legal prostiution isn’t quite the bowl of cherries proclaimed by some. From the Wikipedia article:

    It is argued[citation needed] that street prostitution is not victimless as it may damage the reputation and quality of life in the neighbourhood and diminish the value of property. Peter De Marneffe notes that many prostitutes have not finished school, affecting their ability to be able to have a career that they might have preferred. Therefore, prostitution also affects the application of their talent in other areas of the economy in which they can succeed. Maxwell (2000) and other researcher have found substantial evidence that there is strong co-occurrence between prostitution, drug use, drug selling, and involvement in non-drug crimes, particularly property crime. Because the activity is considered criminal in many jurisdictions, its substantial revenues are not contributing to the tax revenues of the state, and its workers are not routinely screened for sexually transmitted diseases which is dangerous in cultures favouring unprotected sex and leads to significant expenditure in the health services. According to the Estimates of the costs of crime in Australia,[11] there is an “estimated $96 million loss of taxation revenue from undeclared earnings of prostitution”. On top of these physical issues, it is also argued that the there are psychological issues that prostitutes face from certain experiences and through the duration and/or repetition. Some go through experiences that may result “in lasting feelings of worthlessness, shame, and self‐hatred”.[12] De Marneffe further argues that this may affect the prostitute’s ability to perform sexual acts for the purpose of building a trusting intimate relationship, which may be important for their partner. Because of the lack of a healthy relationship, it can lead to higher divorce rates and it can influence unhealthy relationship to their children, influencing their future relationships. Although this is more difficult to control by law, it should be considered when creating policies in protecting prostitutes’ psychological health.

    Libertarians tend to talk airily of FREEDOM, but glide over the costs. I would argue that there should be programs for those who want to get out of the sex work trade, including health, drug treatment and education programs.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Grewgills says:

    @john personna:
    I lived in the Netherlands for a time. The ‘social fabric’ their was every bit as strong as it is here.
    Legalization and stiff regulation make it much safer for the vast majority of women and their customers. It is prohibition, as with alcohol and other drugs, that escalates the violence and victimization.
    Consider also that in the US there is a rather large loophole in the law; it is illegal to directly exchange money for sex unless you film and distribute it. This has the effect of turning Johns into porn producers.

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  15. Gavrilo says:

    Prostitution degrades women, regardless of whether it’s done voluntarily or as a result of abuse or addiction.

    Like or Dislike: Thumb up 1 Thumb down 6

  16. Electroman says:

    @Gavrilo: The more transparency there is, the easier it is to protect those who truly need protection. Legalization doesn’t require transparency, but transparency requires legalization, or at least decriminalization.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Electroman says:

    And yes, for the record, I do believe that prostitution should be legal, and not in the “Scandinavian Model” system that Canada has had for decades (where prostitution itself is legal, but anything else associated with it is illegal). In fact, I don’t see a lot of good in that system.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. grumpy realist says:

    @Gavrilo:
    It seems to me that if you’re going to barter sex in exchange for support because it’s the most profitable of your economic alternatives, there’s very little difference between doing it as a call girl or as a trophy wife.

    In both cases, it reinforces the lesson: you are useful only as a body to provide sex and nothing else.

    Like or Dislike: Thumb up 4 Thumb down 0

  19. Gustopher says:

    Is gambling legal there? Is Canada just like the US, but with hookers and blackjack and a parliament?

    Like or Dislike: Thumb up 0 Thumb down 0

  20. Gustopher says:

    @Gavrilo:

    Prostitution degrades women, regardless of whether it’s done voluntarily or as a result of abuse or addiction.

    So does working unpaid overtime, or having to balance two jobs to make enough to live on.

    Prostitution is a difficult job and it’s been around forever. There’s no way to get rid of it, so the best option is to mitigate the risks, make sure the workers are protected, give them legal recourse in cases of abuse.

    Drug addiction is a separate problem, and we’re better off addressing that outside of the context of prostitution.

    Like or Dislike: Thumb up 6 Thumb down 0

  21. john personna says:

    @grumpy realist:

    Did you miss “(on both sides)”?

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  22. john personna says:

    Other than that, you know I live the moral high ground.

    There’s not much higher than something supported by Aristotle’s ethics.

    What makes us good men is what differentiates us from the beasts of the fields.

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  23. john personna says:

    (I meant to say I “love” the high ground. I am not deceived enough to believe I live it.)

    Like or Dislike: Thumb up 0 Thumb down 1

  24. Jenos Idanian #13 says:

    Oh, so that’s why they’re called “hosers.”

    And to quote George Carlin, “Selling is legal. F_cking is legal. So why isn’t selling f_cking legal?”

    Like or Dislike: Thumb up 2 Thumb down 0

  25. john personna says:

    More Aristotle:

    Consider again the case of lustfulness. Lust is not a virtue because it is a tendency to feel too much sexual desire and to respond to it too indiscriminately. Lust lies at the extreme of excess. At the other extreme is a state of character that consists in a tendency to feel too little sexual desire or to react too little to it. Perhaps this character state is so unusual as to go un-noticed, but in recognizing the existence of such a vice, we are only acknowledging that sexual desire does, under appropriate circumstances, add to a rich an flourishing human life. Sexual virtue, will lie at the mean between these extremes on Aristotle’s view. Sexual virtue will consist in feeling and responding to sexual desire under the right circumstances and to the appropriate degree.

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  26. grumpy realist says:

    @john personna: Missed that. Just pointing out that historically it hasn’t been implemented that way.

    Funny how a guy who wants to go for some fun outside the marriage suddenly gets all hot and bothered when his wife claims the same freedom…..

    Like or Dislike: Thumb up 3 Thumb down 0

  27. grumpy realist says:

    P.S. I don’t know if we can ever get back to the mental state that would allow it, but why not a church where prostitutes were holy and the act of prostitution was holy?

    The one major complaint I have about Christianity is that between their fear of women’s sexuality and the enshrinement of the spiritual over the body (which they swiped from the Platonists), is that they have probably forever removed that possibility from the Western psyche. We’re far too steeped in the concept that Sex Is Dirty and Vile. Even the mad swingers believe it–otherwise they wouldn’t go around yelling loudly all the time how Free and Unrepressed they are.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. grumpy realist says:

    Bring back the heterae and the courtesans!

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  29. Peter says:

    Sayeth the Supreme Court of Canada:

    Ho ho ho, Merry Christmas!

    Like or Dislike: Thumb up 1 Thumb down 1

  30. anjin-san says:

    Prostitution degrades women,

    Quite a few of the things people do for money degrade them. If women choose to be prostitutes, let’s make it as safe and respectable as we can for them. Prostitution is not going way, regardless of what the morality police say.

    Like or Dislike: Thumb up 4 Thumb down 0

  31. bill says:

    @stonetools: like nevada, it should be up to the states that want to “legalize” it. i think it should be legal but don’t think the fed needs to declare it to be the law of the land. just like weed and most recreational drugs, taking the stigma away will force criminals to make money elsewhere.

    Like or Dislike: Thumb up 2 Thumb down 1

  32. john personna says:

    There might be an argument that if legalization reduced total suffering it would be justified on that basis, but I think it’s a bit naive to think that legalizing the “good kind” would drive out the “bad kind” (underage prostitutes, human trafficking, etc.)

    Geez, you’d need someone to check the girls and boys ID’s and STD profile on a regular basis, right?

    What a wonderful world.

    Like or Dislike: Thumb up 0 Thumb down 1

  33. Grewgills says:

    @john personna:
    In places where it is legal, they regularly check ages and health, particularly STDs but also other communicable diseases. There are also regular checks for other labor conditions to protect against other abuses. Yes, there are still some cheaper illegal prostitutes in those places, but there is much less of that trade since there is a much safer legal trade.

    Like or Dislike: Thumb up 1 Thumb down 0

  34. john personna says:

    I think this is all best kept as fantasy. That’s where it works best for everyone.

    Go ahead, fall asleep tonight dreaming you are Doctor Detroit.

    Like or Dislike: Thumb up 0 Thumb down 1

  35. Grewgills says:

    @john personna:
    Unfortunately it has not been and will not be kept in the realm of fantasy. As such, we have to deal with the real problem. The best way I have seen to do that is to have it legal and strictly regulated. It is safer for all involved.
    I have a wife and a month old baby girl, so I will pass on the Dr Detroit fantasies.

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  36. 11B40 says:

    Greetings:

    As one who is steadily evolving into one of the most progressing progressives of this Progressive Zeitgeist, I just want to reiterate my personal progressive commitment to the abolition of not just standards but consequences too.

    I just wish that the judgies had been more explicit about their concern for our homosexual brethren and sisteren on their end of the sexual dysfunction spectrum. You know, they’re not all happily married yet.

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