The right to self-preservation is at the heart of an Ontario Court of Appeal ruling on Monday striking down the Criminal Code ban on brothels, and rewriting the anti-pimping law to allow prostitutes to hire bodyguards. Survival is not a right to be taken lightly.
The federal government might be tempted to try again. The court suspended the legalization of brothels for one year, giving Parliament time to redraft another law, if it chooses.
But it’s unlikely to get very far, having suffered a similar defeat over the same principle last year, when the Supreme Court justifiably upheld the right of drug addicts to use a supervised-injection clinic in Vancouver. Why? Because many people would have died if Ottawa had been allowed to shutter that clinic as part of its “war on drugs.” A law that puts vulnerable people in extra peril will almost always be grossly disproportionate to its purposes, and therefore unconstitutional.
The Conservative government should consider the wise compromise crafted by Ontario’s top court.
The court upheld the law barring street solicitation because it is aimed not only at stopping a “public nuisance” (as a lower-court judge had put it, in ruling that law unconstitutional), but at serious social harms. Those harms include children witnessing acts of prostitution, harassment of residents, unsanitary acts, violence, unwelcome solicitation of women and children by customers, and unwelcome solicitation of male residents, the court’s majority said, by a 3-2 count, in the one prostitution law that the judges disagreed on. Generally speaking, it is Parliament, not judges, that should be balancing complex harms; and the evidence that the solicitation law causes serious physical harm is weak.
But courts do have a role in protecting those who are vulnerable and politically powerless, when laws are arbitrary, disproportionate or harmful. The Ontario court was right to say that, if the anti-pimping law aims to protect women, the same purpose can be achieved by allowing women to hire bodyguards, but disallowing any exploitation of prostitutes. The court also said the law against bawdy houses or brothels, including one-woman operations, denies prostitutes a relatively safe place – “home-field advantage.”
The federal government had argued that the Criminal Code does not aim at eradicating prostitution, but at limiting its worst effects; if that is the case, the government should leave the matter of brothels to provincial and local regulatory and zoning authorities – a vexing matter for another day.