National Affairs Rory Leishman

In unilaterally striking down three key provisions of the Criminal Code, that prohibit the operation of houses of prostitution in Canada, on Sept. 28, Madam Justice Susan Himel of the Ontario Superior Court indulged in an illegitimate exercise of raw judicial power. Her ruling overturned the law, distorts the Constitution of Canada and violates the fundamental separation of legislative and judicial powers essential to freedom and democracy.

Of course, Himel sees matters differently. In her opinion, longstanding sections of the Criminal Code which ban living off the avails of prostitution, keeping a common bawdy house, and solicitation for prostitution should now be deemed unconstitutional, because they “force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.”

Himel has no legal basis for this finding. She did not, and cannot, cite any evidence that Canada’s criminal prostitution laws are incompatible with the Charter as enacted and originally understood.

In the 1990 Prostitution Reference, the Supreme Court of Canada explicitly held that the prohibitions in the Criminal Code on solicitation for prostitution and keeping a common bawdy house are compatible with the Charter. Himel deliberately ignores this binding precedent on all Canadian courts.

In defense of her unprecedented ruling, Himel trotted out the hoariest of judicial clichés — that the Constitution of Canada is a “living tree capable of growth within its natural limits.” Quite so, but those natural limits of growth are determined by the text of the Constitution as originally understood: they are not subject to arbitrary redefinition by judicial activists like Himel who are bent on imposing their personal policy preferences from the bench.

While judges have always been tempted to make radical changes in the law as they see fit, those schooled in the common law used to habitually resist that temptation. And rightly so. Judicial restraint is essential to democracy. Montesquieu famously observed in his 18th century classic, The Spirit of Laws: “There is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.” Sir William Blackstone likewise warned in his magisterial Commentaries on the Laws of England that liberty “cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe.”

Canada’s judicial activists flout the separation of legislative and judicial powers. Under the pretense of upholding the Charter, they routinely change the law, amend the Constitution and dictate policy guidelines to Parliament.

Of course, in exercising this illegitimate and arbitrary power, judges can always count upon the enthusiastic support of intellectuals who support the new laws and policies dictated from the bench. Himel’s ruling is no exception. A wide assortment of leading liberals and libertarians who favour the decriminalization of bordellos and prostitution in Canada have hailed Himel’s judgment as a progressive innovation in the law and the Constitution.

In “Hookers, hacks and Himel,” (Maclean’s, Oct. 7), Colby Cosh, a libertarian, enthuses: “Himel’s judgment gives the impression that she carefully scrutinized and weighed the massive body of evidence before her.” That impression is false. Himel cites in her ruling The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws, a report submitted to Parliament in 2006 by the House of Commons Standing Committee on Justice and Human Rights, but she displays no evidence of having carefully scrutinized this key document.

Referring to the legalization of houses of prostitution in The Netherlands, the all-party committee reports: “Witnesses noted that full legalization appears to have led to a massive expansion of prostitution — particularly unregulated prostitutes operating in the underground industry. Due to concerns about the stigma of being officially recognized as a prostitute (including difficulty in accessing bank loans, day care, etc.), only four per cent of individuals selling sexual services in The Netherlands have registered with the authorities. 96 per cent thus operate illegally, underground.”

Himel makes no reference to these crucial findings in her ruling. Instead, she simply states: “According to reports commissioned by the (Netherlands) Ministry of Justice, Dutch decriminalization has been moderately successful in improving working conditions and safety in the legal practice of prostitution.” That’s it. Himel says nothing about evidence that 96 per cent of Dutch prostitutes continue to work illegally.

She also makes no reference to recent attempts to clean up Amsterdam’s notorious red-light district. In an interview with the New York Times (“Amsterdam Tries Upscale Fix for Red-Light District Crime,” Feb. 24, 2008), the mayor of Amsterdam, Job Cohen, explained: “We’ve realized this is no longer about small-scale entrepreneurs, but that big crime organizations are involved here in trafficking women, drugs, killings and other criminal activities.”

Liberals and libertarians take note: Cohen is not some dogmatic and ill-informed, social conservative. Earlier this year, he was elected leader of the Dutch Labour Party.

Cohen understands that the decision in 2000 to legalize prostitution in The Netherlands has failed to protect women: “We realize that this hasn’t worked,” he says, “that trafficking in women continues. Women are now moved around more, making police work more difficult.”

Perhaps, Himel is unaware of the failure of legalized prostitution to protect prostitutes in The Netherlands. If so, her ignorance would be understandable. She had to base her ruling on only seven days of public hearings.

Members of the House of Commons Justice Committee spent three years studying Canada’s criminal prostitution laws. Compared to Himel, these legislators had far more time to hear witnesses, to draw upon governmental resources and to debate and ponder their findings.

One wonders why our elected legislators bother to devote so much effort to preparing and drafting legislation when the ultimate policy decisions are likely to be made by judicial activists like Himel on the Supreme Court of Canada. Compared to members of Parliament, judges have far less time and information to draw upon in preparing and evaluating legislation. They also lack the constitutional and democratic authority to enact radical changes in the law.

For all these reasons, unelected judges should stick to judging and leave legislating to elected legislators.

Defenders of Himel will point out that in striking down Canada’s prostitution laws, she only undertook to impose what the majority of the House of Common Justice Committee recommended four years ago that Parliament should enact. Specifically, the committee’s report states: “Members from the Liberal, New Democratic, and Bloc Québécois parties are of the view that sexual activities between consenting adults that do not harm others, whether or not payment is involved, should not be prohibited by the state… The approach proposed by these members is premised on the idea that it is preferable to concentrate our efforts on combating exploitation and violence in the context of prostitution, rather than criminalizing consenting adults who engage in sexual activities for money.”

The Harper Conservatives take a decidedly different view. In an official government response to the recommendations of the majority on the committee, Justice Minister Rob Nicholson stated: “Prostitution harms all of Canadian society, and Canadian women in particular. This Government condemns any conduct that results in exploitation or abuse, and accordingly does not support any reforms, such as decriminalization, that would facilitate such exploitation. Commodification and exploitation of women is never acceptable.”

Canadians should keep these political differences in mind. In view of the calamity of legalized prostitution in The Netherlands and elsewhere, voters should press all candidates in the upcoming federal election to explain: Do you favour the decriminalization of prostitution as recommended by the Liberal, New Democrat and Bloc Quebecois members of the Commons Justice Committee? If not, would you support invocation of the notwithstanding clause of the Constitution if necessary to overturn any attempt by judicial activists on the Supreme Court of Canada to usurp the legislative powers of Parliament by radically amending or striking down Canada’s criminal prostitution laws?