When the federal government argues that there is no constitutional right to be a prostitute, it misses the point of a case that could lead to the decriminalization of prostitution. The point is that if the prostitution laws heighten the risk of being murdered in an already unsafe job, they may infringe on the individual right to be secure from arbitrary state action.
Do they heighten risk? It certainly seems that way. Exchanging sex for money is not illegal in Canada. But the laws around prostitution make it impossible to hire, say, a bodyguard or a driver (living off the avails of prostitution is a crime), or to work out of an apartment (running a brothel is a crime). Those laws, and one against solicitation, are being challenged at the Ontario Court of Appeal; a lower-court judge has declared them unconstitutional.
And this country is full of true and terrible stories of women selling their bodies for sex who have been prey, in recent years, for serial killers in British Columbia and Alberta. These are vulnerable women already – a good number of them poor, or addicts, or from abusive childhoods – and if the law exposes a vulnerable group to serious or even fatal harm, no constitutional court is going to look kindly on it. Especially if part of the law’s raison d’être is to protect women.
It could be argued that the prostitution laws are not arbitrary, that they are designed to protect vulnerable women and the community from degradation and exploitation. We have argued that prostitution should be decriminalized because forcing it underground puts women at greater risk, but we have also said that balancing complex social harms is the job of Parliament, not the courts. Now, though, the weakness of the federal argument against prostitution – “it is not a constitutionally protected right” – gives us pause. It suggests the harms done to women by the prostitution laws are simply outside the government’s field of vision. They don’t register. They are not weighed in the balance.
If that is the case, the Ontario Court of Appeal (and, some day, the Supreme Court of Canada) may feel obliged to weigh the harms themselves, and come to its own conclusions.