[SWAF-Potluck] Prostitution and the politics of justice

[Andy Sorfleet]

tp://www.nationalnewswatch.com/
NATIONAL NEWSWATCH
Saturday, June 7, 2014

Don Lenihan



Prostitution and the politics of justice

What should we make of a justice minister who drafts a law that he
knows isn't likely to survive the scrutiny of the courts? I'm thinking
of Peter MacKay's prostitution bill.

Experts agree that it will almost certainly fail the constitutional
challenge that is waiting just around the corner. If so, whatever your
political persuasion, it's worth pausing to ask: What exactly is the
point of the exercise?

We know the Conservative base favours a law-and-order stand on crime;
and we know from the government's polling that lots of Canadians don't
want prostitution decriminalized.

A generous view is that, in drafting the bill, MacKay decided to stand
up for what Canadians believe, rather than buckle before a few
unelected judges. In this view, the bill opposes "judge-made law" and
strikes a blow for democracy.

It's a nice story, but how likely is it?

In the early and more aspirational days of the Harper government, it
might have been convincing. But eight years on, the Conservatives have
appointed most of the judges on the Supreme Court, and many of the
other benches.

Unlike the US, this has failed to create a "conservative court,"
leading many to conclude that judge-made-law is not so much the
product of liberal bias as an evolving legal system and a changing
society. As the prime minister recently found, Canadians think the
court is doing its job and they hold that office in far higher esteem
than his.

So even if the minister is throwing down the gauntlet, it's hard to
see where this leads. MacKay may be able to draft a flawed bill, but
this is little more than sound and fury, signifying, well, nothing. In
the end, the law will go crashing into a constitutional wall. And then
what?

Sadly, the answer seems to be that the government doesn't really care.
This train wreck is far enough in the future that it will be someone
else's mess.

So the exercise is about politics, not principles. MacKay believes the
court dumped the problem on the government and he is not going to get
into a fight with his base trying to fix it.

And that's too bad. The minister seriously underestimates Canadians'
willingness to accept change. We have a whole history of it.

Lots of conservatives opposed medicare and the flag, yet both have
become defining features of the Canadian political landscape.

Lots of progressives opposed Free Trade, only to embrace it after the
1988 election. Today, an older generation of Canadians is becoming
surprisingly at ease with same-sex marriage.

The lesson is that things change and eventually people do too. Perhaps
conservatives have a point when they say that the Charter and the
judges have weakened the supremacy of parliament. Nevertheless, that
battle is over and it's time to move on.

Rather than raising false expectations about the government's ability
to reclaim a more democratic past, the minister should be challenging
Canadians to prepare for the future.

The prostitution bill is a case in point. The government could have
taken a more forward-looking approach, and still brought enough of the
Conservative base along to make it a success.

If MacKay doubts this, it may be because he has been taken in by his
own research. At a press conference this week he announced the results
of his department's survey of some 31,000 Canadians.

According to MacKay, "These consultations made it clear that the
majority of Canadians prefer an approach that criminalizes purchasers
and those who benefit economically from prostitution of others."

But is this clear? A majority of Canadians probably did say something
like this in reply to the survey, but let's consider the questions.

Take this one: ‘Do you think that purchasing sexual services from an
adult should be a criminal offence?' If the question looks
straight-forward, in fact, it frames the issue in a way that ignores a
crucial point.

When people make a value judgment they are usually willing to adjust
it if they find it conflicts with a more deeply held value.
Prostitution is a good example.

We know that sex workers face serious risks and can be the victims of
brutal violence. Think of the Robert Pickton murders or the hundreds
of aboriginal sex workers who have gone missing in recent decades,
likely also murdered. Canadians are horrified by this.

Now let's note the growing body of evidence that shows that the Nordic
model adopted by MacKay significantly increases the risk of violence
for sex workers. If Canadians were fully informed on these findings,
I'd wager that many minds would quickly change on the question of
decriminalization.

Here's the way MacKay's survey should have posed the question: ‘Do you
think that purchasing sexual services from an adult should be a
criminal offence, if criminalization increases the risk of violence to
the seller?'

Had the questions been asked this way; and had Canadians been more
exposed to the studies on the Nordic model, I suspect the results
would have been very different. Canadians' concern for the safety of
women in the sex trade would have trumped their other misgivings about
prostitution.

(La Presse reports that MacKay is refusing to release the results of a
second poll conducted by his department, whose findings officials say
may conflict with the government's position.)

This legislation notwithstanding, I believe it still will.
Unfortunately, in order to get that kind of justice, sex workers will
now have to look to the courts, rather than the minister.

There's an old adage in policymaking that when you can no longer stand
your ground, it's time to change places. The minister might want to
give this some thought.