The Canadian government argued at the Supreme Court on Thursday that women who choose to be prostitutes are responsible for the risks they face. That argument is blind to the dangerous consequences of this country's prostitution laws, as seen in the serial murders, perhaps as many as 49, committed by Robert Pickton of Port Coquitlam, B.C.
Justice Michael Moldaver put his finger on that issue, asking why already vulnerable women should be made easy prey for murderers. "These are the type of victims the Picktons prey on," he said. "So we take away from them their one window for assessing whether to get into a car or not?"
Robert Pickton was able to kill and kill again because Canada's prostitution laws drove women, already vulnerable because of drug addiction, mental illness and extreme poverty, so far onto society's margins that they were in effect outside the protection of the police.
The law bans selling sex out of one's home, and hiring a bodyguard for protection. It also bans street solicitation. The result is that women who sell sex for a variety of reasons, including in what some call the "survival sex trade," are pushed underground, and can become something like non-persons before the law. Even when one such woman came forward and told police and a Crown attorney a heartrending story of barely surviving a knife attack by Mr. Pickton, backed up by compelling physical evidence, her story went nowhere, and many more women died.
That is an important part of the real-life context in which prostitution laws play out. And it explains why the Supreme Court should follow the lead of the Ontario Court of Appeal in striking down at least some of the major laws on prostitution. (The appeal court said the ban on street solicitation should remain, and we agree.) It is not right that the Criminal Code should heighten the risk of violent death for vulnerable people. For a similar reason, the Supreme Court ruled unanimously in 2011 that the federal government could not shut down Insite, a supervised clinic in Vancouver for the injection of illegal drugs. Ottawa had argued that addicts choose to commit the crime of illegal drug use and should pay the consequences.
In general, complex social questions should be left to Parliament. But when vulnerable people with constrained choices take self-destructive paths, and the state makes matters infinitely, even fatally, worse for those people, the courts have no choice but to protect them.