Ontario’s Court of Appeal judges did a good job of probing lawyers during hearings into Canada’s prostitution laws last week.
Counsel for various governments have been adamant that the law should stand. While advocates for sex-trade workers say current legislation targeting communication for the purposes of prostitution and bawdy houses makes their work unsafe, lawyers for the government argue people have a choice on whether to earn their living that way.
The law is a reasonable response to public concerns over prostitution in general as well as the specific issue of victimization of sex-trade workers. But the problem, as Court of Appeal Justice James MacPherson pointed out last week, is that prostitution is a “perfectly legal occupation.”
MacPherson was questioning government lawyers’ assertions that sex-trade workers can simply quit their jobs if they’re unsafe. But if it’s legal for them to earn their living that way, it’s certainly valid to question laws that push the sex trade into dangerous places.
The government, then, can’t have it both ways. It can’t allow prostitution itself while claiming to protect people from the sex trade but making it dangerous at the same time.
As a result, it needs to do more than just advocate for the status quo through its appeal of Superior Court Justice Susan Himel’s landmark ruling last year that found the current laws violate sex-trade workers’ constitutional rights through the unsafe practices they encourage.
The situation leaves Canadians with a conundrum. The government could try to actually outlaw prostitution, but that’s probably not realistic and would likely add to the problems that already exist.
It could also change the current laws banning bawdy houses, communication, and living off the avails and instead allow some sort of system for licensing and regulating the sex trade.
Obviously, that’s a difficult proposition for a Conservative government in Ottawa that would have trouble explaining such a move to its supporters. So we’ll likely have to wait for the courts, possibly Ontario’s appeal court, to move the issue forward.
What the ultimate solution will look like is unclear as there’s no obvious answer. But in the meantime, the government could at least try to get ahead of the issue by engaging Canadians on what they’d like to see and examining best practices around the world.
It’s likely, however, that it will take the courts to change things. Some people will complain about that, but in this case, it appears to be the only way of dealing with the issue rationally.
— Glenn Kauth
