On Friday, the Supreme Court released its much-anticipated decision in Bedford. The central issue in that case was whether a number of prostitution-related offences are inconsistent with the Charter. The Court concluded they were. In determining the answer to that question, though, the Court shed light on a deeper one – one that goes to the heart of the state-citizen relationship.
The claimants in Bedford argued that three criminal offences – operating a common bawdy-house, living off the avails of prostitution, and solicitation – interfere with their security of the person. They did so by preventing prostitutes from working out of their own homes, hiring security or other protective services, or engaging in the sort of communication with potential clients that would allow them to better identify and avoid threats.
Prostitution, the claimants conceded, may have built-in risks. But the criminal law, as matters stood, increased those risks. It forced prostitutes to choose between acting in accordance with the law and protecting themselves. They couldn't do both.
The Crown argued that prostitutes could avoid the dangers associated with the practice simply by ceasing to engage in it. Even if prostitution was not a criminal offence in Canada, it is notoriously dangerous. That would remain true even if the challenged provisions of the Code didn't exist. So it wasn't the law that puts prostitutes at risk, the Crown argued – it was the prostitutes themselves, and the johns that abuse them. That being the case, the Charter simply has nothing to say about it.
This is a seductive line of reasoning, but a deeply problematic one. To accept it is to conclude that, when a person engages in a lawful activity, the state is free to abandon her to all of the risks and dangers associated with it, leaving her more unprotected than she would be if there was no law at all. The state may strip away all one's defenses, and may do so for any reason or for no reason.
This argument turned on its head what is surely an important rationale for having a legal order in the first place: the need to protect the vulnerable from exploitation and abuse. Here, the law was used not to protect the vulnerable, but to make them more vulnerable. It reduced them to a condition that the Italian philosopher Giorgio Agamben has called "bare life".
My point is not that people have a capital-R right to engage in prostitution. In rejecting the Crown's argument, the Court specifically noted that it was not finding a Charter right to practice the "vocation" of one's choice. But as matters stand, prostitution is legal – as legal as any "ordinary" activity that people engage in every day. Parliament itself has decided to allow men and women to work as prostitutes. Having done so, it does not get to decide that prostitution is a law-free zone, in which johns are free to treat prostitutes however they please.
Underscoring this point, the Court compared prostitution to another sometimes dangerous but lawful activity: riding a bicycle. The law may not need to allow people to ride bicycles. If it does, though, it cannot prohibit them from wearing helmets.
We are not even talking whether the law should construct an elaborate regulatory regime – in essence, workplace safety laws – to protect prostitutes. That is a conversation that, going forward, we should have. Today, as the Court observed, the issue was not whether the state should more actively step in to protect prostitutes; only whether it was entitled to stop prostitutes from taking common-sense steps to defend themselves. It emphatically said no.
The decision reflects common intuitions about the limits of the law's authority over us. Imagine the public's reaction if Parliament decided to abolish the defense of self-defense. A person who was attacked would be forced to choose between breaking the law and being injured or killed. The law, many think, cannot force such a dilemma upon us. At the very least, the state must have a good reason for doing so. According to the Crown's reasoning in Bedford, the state could thrust this dilemma upon us for no reason at all.
The Court was right to reject this claim. If Parliament wants to criminalize prostitution, it may be able to do so. But unless and until it does, it is unacceptable for the law to proceed as if some people are unworthy pf the law's protection.
Michael Plaxton is an associate professor of law at the University of Saskatchewan