On December 20, 2013, the Supreme Court of Canada issued an unanimous decision which struck down three Criminal Code provisions regulating prostitution: living off the avails of prostitution; communicating in public for purposes of prostitution; and keeping or being found in a bawdy house.
Initially, I was not only saddened by this decision but perplexed by the reasoning behind it. The decision says, in part: "The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice."
I'm afraid that many will conclude that once again the Charter of Rights and Freedoms has been invoked, the Supreme Court has spoken, and settled the prostitution issue.
The quote ascribed to the great philosopher and former New York Yankee baseball player, Yogi Berra, readily comes to mind - "this is déjà vu, all over again."
A few years ago, the Supreme Court said that Parliament may redefine marriage, it did not say that it must redefine marriage to include same-sex couples. At that time the Supreme Court Justices talked about reading the Constitution,"expansively," and that it is like a "living tree which by way of progressive interpretation, accommodates and addresses the realities of modern life."
There are more roots to the tree than simply the Charter of Rights and Freedom. There are also historical, cultural, philosophical, moral, and anthropological roots. The failure to attend to the health of all the roots runs the risk of killing the tree and destroying the public good.
Prostitution is not only anti-marriage but it exploits its participants and causes societal harm.
Chief Justice McLachlin stated: "While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself 'to make enough money to at least feed myself.'
As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population. Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice-what the Attorney General of Canada called constrained choice-these are not people who can be said to be truly 'choosing' a risky line of business."
The effect of the Supreme Courts decision was suspended for 12 months to give Parliament a chance to respond.
I now see the decision as an opportunity for our law makers to do something right, namely, to change the focus to the criminalization of the purchasing of sexual services. The Government of Canada is perfectly positioned to introduce new legislation on prostitution that will both reduce its incidence and improve the safety and security of its victims.
The evidence of other countries that have experimented with liberalization of prostitution quickly revealed that such changes led to unintended consequences and to an increase in sex trafficking. A New Zealand Law Review Committee report found in 2008 marked increases in violence and coercion of sex workers following liberalization of prostitution laws in 2003. A recent German report suggested that liberalization of prostitution in 2002 has spawned increased participation to levels of 700,000 prostitutes.
On the other hand, in Sweden, the passage of a law that treats prostitution as a form of violence against women that fosters inequality has resulted in a 50% drop in street prostitution. Sweden is also noted for having the least amount of trafficked women in the European Union.
Furthermore, the law has been successful in changing public opinion with over 70% of the population supporting the law.
The Swedish approach, commonly called the Nordic Model, criminalizes the purchasing of sexual services and offers support and rehabilitation opportunities for prostituted women and exit strategies. Women selling sex are seen more as victims rather than criminals. This model recognizes that the root cause of exploitation of women through prostitution is the demand of male customers, without which the global industry of trafficking and prostitution would collapse.
The Catholic Women's League of Canada has assumed a real leadership role on this issue for quite some time and have repeatedly urged all CWL members to write and/or email their MPs and MLAs in support of the CWL's Resolution 2012.01 Criminalization of the Purchasing of Sexual Services. It's now time for us to follow their prophetic lead.
It is particularly timely, that on Ash Wednesday, March 5, Pope Francis sent a lenten letter of support to Bishops of Brazil in their opposition to human trafficking:
It is impossible to remain indifferent when one learns that there are human beings who are bought and sold like merchandise! Think of the adoption of children destined to be sold for organ transplants, of women who are deceived and forced into prostitution, of workers without rights or a voice who exploited, etc. This is human trafficking. It is precisely on this level that we need to make a good examination of conscience: how many times have we permitted a human being to be seen as an object, to be put on show in order to sell a product or to satisfy an immoral desire? The human person ought never to be sold or bought as if he or she were a commodity. Whoever uses human persons in this way and exploits them, even if indirectly, becomes an accomplice of this injustice.
☩ Frederick Henry