The Supreme Court of Canada has struck down the country’s prostitution laws. The National Post and CBC both have reports on the decision, and Ryan Heighton of thecourt.ca has a brief legal analysis. It is important to remember that prostitution per se — exchanging sexual favours for money — is not illegal, the Criminal Code prohibited brothels, living on the avails of prostitution, and communicating in public with clients. The SCOC said those restrictions were “over-broad” (living on the avails of prostitution) and “grossly disproportionate” (communicating in public with clients) and called upon Parliament to write a new law within the year. That last part could lead people on both sides to be optimistic, with pro-legalization supporters believing Parliament might have to permit prostitution and anti-legalization advocates hoping Parliament will ban the actual practice. Another possibility is to follow the suggestion of the Evangelical Fellowship of Canada which is to follow the Nordic model and go after demand (the johns).
Chief Justice Beverley McLaughlin said, “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.” That makes me wonder if the Court will allow Parliament to severely curtail or outright ban prostitution. But considering that this is what MacLaughlin had to say about Parliament’s possible reaction, I don’t think that prostitution can be prohibited, only regulated:
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.
The decision does not take effect for one year to give Parliament the chance to come up with a new law. We’ll have to see how this shakes down politically. The EFC has released a statement calling on Parliament to protect women and children from sexual exploitation.