Laws that heighten the dangers to vulnerable prostitutes violate Canada's basic values and cannot stand, the Supreme Court of Canada has ruled.
The unanimous 9-0 ruling shows that the country's most influential court, which now has a majority of its members appointed by Prime Minister Stephen Harper, is as unwilling as ever to defer to government when it perceives government using criminal laws in ways that put vulnerable people at risk of severe harm or death.
The ruling is one of the biggest since Canada's criminal law of abortion was struck down in 1988. A similar principle was at the heart of that case: Criminalizing people at risk will not be tolerated if it is done in such a way as to heighten risks. In this case, Ottawa argued that prostitutes bring the risks on themselves, but the court accepted that vulnerable people are not always in a position to avoid risk. "Many prostitutes have no meaningful choice," Chief Justice Beverley McLachlin wrote for the court.
The court's willingness to spend its political capital on the protection of prostitutes, by striking down laws with roots that go back decades, and even to pre-Confederation days, sends an unmistakable message to the Conservative government: Any new laws would have to "take seriously the safety concerns of people who are engaged in sex work," said Elaine Craig, a law professor at Dalhousie University.
Justice Minister Peter MacKay made it clear that he intends to continue to criminalize the sex trade. 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 suspended its ruling for a year, though it is doubtful that police and prosecutors will continue laying charges, which in Canada's backlogged lower courts could take more than a year to reach trial. "Current laws remain in place, so we have no plan to speak about it now," said Constable Brian Montague, a spokesman for the Vancouver Police Department, which he said already has policies that "reflect" the court's concerns. "The safety of sex workers is a priority for us and enforcement is often a last resort. Unfortunately it is still too early to speculate exactly how any changes to law will affect the policies and procedures of the VPD."
The court stressed that it offered no opinion on whether prostitution should be legal. It said most countries do attempt to control prostitution because of its potential for harm. "Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes," Chief Justice McLachlin said in the ruling.
She pointed Mr. MacKay in a potential direction: keeping some aspects of the current laws. The court struck down bans on street solicitation, brothels and living off the avails of prostitution. But it said they 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."
The unanimity tells Mr. MacKay that pleas for deference to legislators will fall on deaf ears if a law's purposes – in this case, controlling neighbourhood nuisances – are out of whack with the damage to those who are unable to get out of harm's way. It is much the same message as the court delivered two years ago when the federal government tried to close down Insite, a Vancouver clinic at which addicts can inject illegal drugs under a nurse's supervision. In that case, the court, with only two members appointed by Mr. Harper, was unanimous that the government could not act in ways that put vulnerable addicts at risk of death.
Chief Justice McLachlin explained how the current laws make prostitutes vulnerable: The ban on brothels prevents them from working in safer indoor locations. The law against living off the avails of prostitution is intended for pimps, but also bans drivers, managers, bodyguards, accountants and receptionists. The ban on street solicitation prevents prostitutes from weeding out dangerous clients.