Supreme Court strikes down Canada’s prostitution laws

A few weeks ago I did a “mini-cruise” to Amsterdam. We spent two nights on a ferry (which was really a small cruise ship) and had about 6 hours to explore the infamous capital of The Netherlands.

During that time, we walked through De Wallen, Amsterdam’s red light district where prostitutes stand in windows in their undergarments, advertising to potential clients. The entire practice is fully legal, regulated, and generally safe (though perpetually controversial).

It may now be a glimpse of Canada’s future as the Supreme Court, in a unanimous decision, has ruled that the governments laws against prostitution do not stand up against the Charter of Rights and Freedoms.

Specifically, the exchange of money for sex is not illegal in Canada, but (1) living off the profits, (2) advertising, and (3) running a brothel were. This combination of rules made it effectively illegal as one could be arrested for soliciting sex on the street, could not operate out of their own or a shared premise, and could not hire security or bodyguards.

Because of the dangers created by working the streets, a number of sex workers and their supporters from various civil liberties and legal defence groups in Ontario challenged the laws in the Ontario Supreme Court. That court overturned the laws but the government won appeal at the Court of Appeal.

This lead to the showdown in the Supreme Court of Canada today, which has the final say on the issue. Chief Justice Beverly McLachlin, who tends to write brilliant decisions, wrote for the unanimous majority:

The appeals should be dismissed and the cross?appeal allowed.  Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter.  The declaration of invalidity should be suspended for one year.

This verdict is very similar to the Morgentaler decision, which ruled that Canada’s abortion laws infringed upon a woman’s right to security of the person but granted Parliament a year to draft new legislation.

Brian Mulroney’s government actually did pass a bill through the House of Commons but it died in the Senate (our unelected chamber) in a tie vote. Since then, Canada has had no legal restriction on abortions (instead it is now treated as the medical procedure that it is).

Stephen Harper’s Conservatives are now in the awkward position of having to draft a law on a highly controversial topic – something they have opted not to do at every turn for the entirety of their time in power.

Not that I like to be in the position of giving advice to the government, but one potential option might be to criminalize prostitution itself. The entire ruling dealt with Canada’s way of making a legal activity incredibly dangerous. I suspect that this is the direction that will likely come about (although I haven’t read the full background to the decision) and would also probably be supported by the Liberal Party and maybe even Mulcair’s NDP (because unfortunately no one really wants to be seen as on the side of the prostitutes).

Despite the progress Canada made in the 1990s and early 2000s, I don’t think it’s quite reached the permissive attitude of The Netherlands.

One thought on “Supreme Court strikes down Canada’s prostitution laws”

  1. Edmonton, AB, already regulates massage parlours and gives out escort licenses for a fee. To date, no indoor sex worker has been killed and only 1 outcall worker was killed (by a deranged client). Much better than what happens to streetwalkers. There IS a made-in-Canada solution, let’s call this the ‘Edmonton model’!

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