On March 26, the Ontario Court of Appeals upheld a perverse 2010 decision which ruled that the Criminal Code’s laws prohibiting keeping a common bawdy house and communicating for the purpose of soliciting prostitution violated Section 7 of the Charter of Rights and Freedoms. Without a thought for the victims of prostitution, the lower court struck down these prudent legal protections on the grounds that they violated the “security of the person” rights of prostitutes and their madams and pimps. In earlier ages, these abusive and manipulative predators would have been prosecuted, and not protected, by the law.
It goes without saying that the Ontario Court of Appeals’ failure to reverse the lower court is an outrage. Ruling that a ban on brothels violates rights enshrined in the Charter, Superior Court Judge Susan Himel had invoked a contentious definition of “security of the person” with an infamous legal pedigree (from Morgentaler onward) to find in the Charter “the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity.” Himel’s original ruling, in other words, found that the Charter grants us freedom for a kind of self-creation that is actually impossible. Moreover, pretending that prostitution is a free choice is a rather frightening concession, as it assumes the perspective of the exploiter: the only parties who trade in the preposterous rhetoric of choice are those who peddle and purchase the bodies of the vulnerable.
But, for the sake of argument, let us hold our noses and entertain this nauseating, misogynistic perspective; let us grant the court its perverse fantasy; let us pretend that prostitution does not occur in coercive contexts of exploitation, illness, addiction, and abuse: even if such ludicrous assumptions are granted, and prostitution is, indeed, a “career move,” and not a desperate and degrading last resort, the court’s own argument fails. For prostitution can never be defended in the name of the human person’s right to security.
Prostitution is immoral because it puts a price on something priceless – something which no wage could ever compensate and no reward could possibly recompense. The preferred euphemistic term “sex worker” attempts to dignify this degrading act of exchange, but the very oxymoron actually makes the point quite clearly: sex, after all, can never be either a work or a wage because the “making” of love is irreducible to labour. The sexual act, instead, always takes the form of an unreserved self-giving that is vulnerable, generous, and fruitful.
That such self-surrender can be intentionally sterile, or sold to any anonymous bidder, does not compromise the true character of the act itself, but only exposes those involved in such undignified imitations to a deep violation of their own dignity. The sexual revolution lowered the act of procreation into the realm of recreation; prostitution marks its final dehumanizing descent into the market of commodities. But bodies cannot be rented without their total debasement; legal prostitution turns the sexual act into a kind of temporary, contractual slavery.
What definition of “security of the person” could ever be invoked to defend such a practice? What legal code could strike down prohibitions against the organization and industrialization of this exploitation – and do so under the aegis of security? It is not merely the Appeals Court’s myopic focus on the minutiae legal precedents which is the problem: no, it is a vision of freedom without any content but “consent” which animates this atrocious decision. The dark vision of freedom emerging in Canadian jurisprudence sees the consensual violation of one’s personal security as a right in itself. And this brings us back to the Charter of Rights and Freedoms. Instead of guaranteeing the rights of its citizens, the Charter has created a legal climate in which our very rights can be “chartered:” that is, rented, leased, employed, and, therefore, destroyed – all in the name of “freedom.” The letter of its law offers no defense for Canadians if our would-be protectors interpret it in such a radically ideological spirit.
Ironically, then, the rights and freedoms which the Charter enumerates become more and more threatened with every passing year. Nor does history fail to show us a depressing pattern in this regard: optimistic statements like the Charter are frequently used to subvert the very things they were intended to protect. The American Founders, who held the truth of human equality to be self-evident, inaugurated a republic which tolerated slavery; the Terror of French Revolution spilled blood while the ink on the Declaration of the Rights of Man was still wet.
These chastening analogues remind us that rights cannot come from well-intentioned philosophes nor the documents they frame. Our rights are endowed by our Creator, they are owed to His creations, and they become reflected in our laws when we courageously combat the darkness of the agents of “enlightenment.” Real human rights do not need the fatuous false promises of our earnest declarations; rather, they require our public, sustained, and unflinching defense.