National Affairs Rory Leishman

In response to the outrageous ruling by the Supreme Court of Canada in Canada v. Bedford last December that struck down Canada’s longstanding laws on prostitution, Justice Minister Peter MacKay has introduced a commendable new bill on prostitution, the Protection of Communities and Exploited Persons Act, that, for the first time in Canada, criminalizes the purchase of sexual services. Will Canada’s top court invoke the Canadian Charter of Rights and Freedoms as a pretence for striking down this legislation as well?

Perhaps so, but no one can know for sure. The problem is that our judicial masters on the Supreme Court of Canada behave less like impartial judges than arbitrary dictators who strike down some laws, change others, and even presume to issue policy directives to Parliament on the kind of new laws that might meet with judicial approval.

Consider the vacillating record of the Supreme Court of Canada in relation to prostitution. For decades both before and after enactment of the Charter, the Court consistently applied and never questioned the constitutional validity of longstanding provisions of the Criminal Code banning the use of bawdy houses by prostitutes, living on the avails of prostitution, and communicating in public for the purposes of prostitution.

Then, with its unanimous, precedent-shattering decision in Bedford, the Court invalidated all three of these laws on the ground that they violate the right of prostitutes to “security of the person” as guaranteed in section 7 of the Charter. In defence of this bizarre ruling, Chief Justice Beverley McLachlin contended in her reasons for judgment that the sections of the Criminal Code at issue in this case heighten the risks faced by prostitutes by preventing them from adopting safeguards such as publicly advertising their sexual services and providing them within the confines of a well-guarded house of prostitution. Nonetheless, as McLachlin also noted, “prostitution itself is not illegal. It is not against the law to exchange sex for money.”

While acknowledging that Parliament can impose regulations on prostitution for the convenience of the public and the safety of prostitutes, McLachlin contended that the impugned prohibitions in the Criminal Code “go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”

Parliament is not under any constitutional obligation to allow armed robbers to reduce the risks of holding up banks, so why should prostitutes have a constitutional right to safeguards in plying their trade? The reason is simple, says McLachlin: unlike bank robbery, exchanging sex for money is not illegal.

To nullify this argument, MacKay has made plain in his proposed new law that exchanging sex for money will be illegal. Specifically, the bill provides that anyone who purchases, or communicates for the purpose of purchasing, the sexual services of an adult person in any place, public or private, is guilty of a criminal offence punishable by a minimum fine of $500 for a first offence up to a maximum penalty of five-years imprisonment. If the prostitute is under the age of 18, the punishment ranges from a minimum of six months imprisonment for a first offence to a maximum sentence of 10-years imprisonment.

These changes in the law are good, as far as they go, but there is no corresponding prohibition on the sale of sexual services. It would make about as much sense to prohibit the purchase, but not the sale, of dangerous drugs. Nonetheless, MacKay’s bill is politically astute. Even among Liberals and New Democrats, very few politicians advocate legalization of the purchase of sexual favours from a prostitute.

Of course, the express will of Canada’s elected legislators is of little account to judicial activists. Just as they acted in open defiance of Parliament by legalizing same-sex “marriage,” so the Supreme Court of Canada is all too willing to defy Parliament, by declaring that Canadians have a Charter right to exchange sex for money.

The key question remains: would Parliament meekly acquiesce to such a lawless ruling? Or would it finally invoke the notwithstanding clause of the Constitution to assure that on this key question of public policy, it is not unelected judges, but elected representatives of the people who make the final, democratic decision?