An Ontario judge had no business striking down three major anti-prostitution laws in the Criminal Code on Tuesday. "There has been a long-standing debate in this country and elsewhere about the subject of prostitution," writes Madam Justice Susan Himel of the Ontario Superior Court, but it is, apparently, over. Who is she to weigh all the potential harms at stake and decide matters, on either side? Who says she can do a better job than Parliament?
Canada should be prepared to liberalize its laws on prostitution, and to take into account the safety of the women (and some men) involved. But that is a job for elected legislators, not a judge.
Judge Himel held in effect a one-woman royal commission on prostitution-related laws (running a bawdy house, living off the avails of prostitution and communicating for the purposes of prostitution) and what they have, or have not, achieved. "By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance," she concluded, ruling it and the other two laws unconstitutional. The arrogance in judging the risk worse than the "social nuisance" is of a large order.
Social nuisance is a dismissive way of framing the harms that the law is aimed at. Prostitution, especially street prostitution, involves victimization, degradation and exploitation of the prostitutes, as justice Antonio Lamer of the Supreme Court said when the court upheld that very same provision (communicating for the purposes of prostitution) in 1990. Young people are exposed to prostitution and related violence, drugs and crime. Then-chief justice Brian Dickson saw the communicating law as a response to the legitimate concerns of homeowners, businesses and residents of urban neighbourhoods. Public solicitation is associated with "general detrimental effects on passers-by or bystanders, especially children."
These are complicated harms. They hurt the participants, who may be vulnerable for many reasons - addictions, poverty, abusive childhoods, mental illness. They involve neighbourhoods. They involve children. None of these is trivial. In trying to avoid one kind of harm to vulnerable individuals, the judge risks causing others to equally vulnerable people (and some of the same people, at that). Parliament is in a far better position to listen to all the evidence, including how Canadians think and feel about the issue, than a judge.