[SWAF-Potluck] New prostitution law: If nothing else, an attempt to fix what's broken

[Andy Sorfleet]

http://fullcomment.nationalpost.com
NATIONAL POST
Thursday, June 5, 2014

Chris Selley, Full Comment



p. A8.

If nothing else, an attempt to fix what's broken

Canada's Conservatives can always be relied upon to oppose judge-made
law. Yet prostitution arrived on Justice Minister Peter MacKay's plate
as a judicial emergency. The legislation he unveiled Wednesday bans
the purchase of sexual services, and communicating and advertising for
said purpose, in response to the Supreme Court nixing existing laws
and imposing a one-year deadline to come up with new ones.

Had you asked Stephen Harper 10 years ago if he hoped to address this
issue, I suspect he would have rolled his eyes. And that's a pity,
really. No government that calls itself conservative (or liberal for
that matter) should have been content with Canada's prostitution laws,
which prohibited things adjacent to prostitution but not prostitution
itself. They made no sense, and more to the point no one could argue
with a straight face they were having their intended effect. Any
sensitive, humane government should have wanted to fix them.

Furthermore, much as Mr. Harper's government generally steers clear of
big issues that rile social conservatives, this might have been an
easier row to hoe for Mr. MacKay than for a Liberal or New Democrat
attorney-general -- each of whom would likely have faced a bigger
split between libertarian and prohibitionist factions.

Depending on how you ask the question, you can find remarkable support
in Canada for legalized prostitution in brothels -- 65% nationally and
a majority in every region, according to an Ipsos Reid poll in 2012.
But that would hardly do as a Conservative position. Mr. MacKay claims
his own research shows 56% support for criminalizing the purchase of
sex, and two-thirds opposition to criminalizing its sale.

[pull quote]
"Parliament needed only five months to write a new prostitution law.
Imagine if they took on all the tough issues without being forced to
by the courts"

It's at least somewhat conceivable that outright prohibition might
have passed constitutional muster. The Supreme Court struck down the
old laws in large part because they restricted, and increased the
risks associated with, a perfectly legal activity.

But outright prohibition would increase the same risks. And the
Supreme Court was not convinced simply avoiding the sex trade was
sufficient advice to give prostitutes in hopes of protecting them from
danger. "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," the ruling argues.

The Evangelical Fellowship of Canada provided Mr. MacKay some cover by
arguing instead to "criminalize the purchase of sex and provide
support services for those who wish to exit the sex trade." And this
bill more or less fits the bill.

But will this new law pass muster with the Supremos? There's no doubt
it's on its way there. And it seems like it will be a close run thing.
The prohibition on purchasing sexual services might rescue
restrictions on the sex trade from the judges' wrath (if not logic's
-- commodities are generally either legal or illegal). But if many
women still have no option but to prostitute themselves, as the
Supreme Court argued, then this bill could make things worse. Putting
johns at heightened legal risk might drive the trade further
underground, thus exacerbating the same old risks faced by
prostitutes.

My own view is that legalization has the greatest potential to reduce
harm, and that as icky as I find it, human beings should be able to
buy and sell sexual services if they choose. But if the Conservatives
want to treat all prostitutes as victims, and pursue a concerted and
well-funded effort to help them "escape" -- a massive "if" -- then I
suppose this law could in theory be a net positive.

In any event, it's at least an attempt to fix legislation that never
made sense, and that governments of various stripes have discreditably
shied away from fixing. If the opposition parties hate it, let's talk
about their plans. All this law took was five-and-a-half months.
Imagine all the hyperspeed progress we could make if Parliament took
on big, important issues of its own volition -- euthanasia comes
immediately to mind -- before the Supreme Court gave it no other
option. Some might say that's its job.