The controversial decision of Madam Justice Susan Himel of the Ontario Superior Court to gut federal prostitution laws with the stroke of a pen this week is a striking example of judicial activism run amok. While the ruling will undoubtedly be appealed, it has ignited a national debate on how our laws should deal with prostitution.
The greatest flaw in Judge Himel's reasoning is that she places the blame for the risks involved in prostitution on criminal offences against solicitation, bawdy houses and living off the avails of prostitution, rather than on the violent johns and traffickers who are the real cause of physical violence, rape and murder in Canada's sex trade.
Countries that have legalized prostitution have not succeeded in using elaborate regulations to address these problems. In the Netherlands, officials shut down vast sections of Amsterdam's red-light district due to infiltration by organized crime. A 2005 report commissioned by the European Parliament found that legalized prostitution generally results in higher levels of violence against prostituted women. In New Zealand, regulation of the sex trade has not improved conditions in brothels with a history of problems, and exploitative contracts continue to be used. But the status quo in Canada that criminalizes those being sold for sex is equally unpalatable to many.
In 1999, Sweden took a pioneering approach: Rather than punish those who are sold for sex, the country holds the purchasers of sex acts liable. Without demand, there would be no sex trafficking and prostitution. The government also implemented a $32-million national action plan that helps those who are being sold for sex to obtain assistance to exit their exploitation.
The Swedish model recognizes that there is an undeniable link between human trafficking for sexual exploitation and prostitution. Politicians declared it was impossible to have true equality in a society that condoned the sexual commodification of economically and racially marginalized women and children.
The evidence is that the Swedish model is working. Between 1999 and 2003, the number of women being sold for sex in the country dropped by 40 per cent. Last July, an independent inquiry by an eminent judge resoundingly endorsed the Swedish model based on its 10-year track record, finding that it had disrupted organized crime, deterred sex-act purchasers, changed public attitudes and cut street-level prostitution in half.
And the inquiry found no evidence that the problem simply moved indoors, as some skeptics had speculated. It also found nothing to suggest that Sweden's abolitionist model had negatively affected those being sold. Sweden's approach is growing in popularity and has recently spread to Norway and Iceland.
What about women who "choose" to sell their bodies for sex? Consider the primary applicant in this week's case in Ontario. While she is a confident woman in her 50s today, her affidavit tells a story of a childhood filled with physical, psychological and sexual abuse. At 16, while in provincial child protection, she met "an abusive 37-year-old drug dealer and drug addict" and began being sold for sex to fund both of their drug addictions.
Research shows that abuse, poverty, substance abuse, homelessness and violence are major factors in someone's ending up in prostitution. One study found that 85 per cent to 95 per cent of prostituted women want out but see no options to leave. Sweden's approach is designed to help them.
If there's any positive side effect of the Ontario court's decision, it might prompt Parliament to consider adopting the Swedish model, as the standing committee on the status of women recommended in 2007. Canada should commit to the abolition of sexual exploitation.
Benjamin Perrin is a law professor at the University of British Columbia and author of Invisible Chains: Canada's Underground World of Human Trafficking.