Just before Christmas the Supreme Court ruled on Canada's prostitution laws. Well, they didn't actually, they ruled on Canada's solicitation laws. Prostitution is legal in Canada but living off the avails of prostitution or soliciting for sex is not. Some may wonder why it matters to make this distinction but it is this distinction that has been at the heart of the legal debate in Canada for many years.
When I was in my fourth year as an undergraduate I took a course in constitutional law. It was one of my favourite courses because for the first time I got a chance to read Supreme Court decisions. Of course anyone can read a decision as they are openly available but like most things we sometimes need an academic nudge to get us to read the tough stuff. Anyway, I digress. My point is that in that class I was assigned the 1990 Supreme Court decision on prostitution laws.
I read with interest the majority decision which upheld the laws and the minority dissent which had mixed reviews of laws and very different reasons for the decision. You see judges can decide that even though they agree with a decision to either uphold or strike down a law they have a different analysis of the case than do the other justices. So you can find a case where there are a number of explanations for a decision as well as a number of dissenting opinions with different reasons for the verdict. It is fascinating because the justices are assessing the objectives of the legislation against the rule of law. In other words, a judge's job is to figure out what the state intended by designing a law (which one might think is obvious but is often quite complicated) and then, using the Constitution and the Charter of Rights and Freedoms, the judges determine if the state has overstepped its bounds of power.
In the 1990 decision on the solicitation laws the majority opinion of the Court was that the laws were constitutional and, moreover the majority argued that the state's solicitation laws went beyond simply stopping a public nuisance. The Court contended that the law's objective "goes beyond preventing congestion in the streets and sidewalks; it has the additional objective of restricting the entry of young girls into an activity that is degrading to women and is associated with drugs, crime and physical abuse." At that time Justice Bertha Wilson was on the Court and she objected to the analysis of her colleagues saying that the law did not protect women. Wilson argued that, in fact, the law was only a law to restrict solicitation in public places. It was not even a law prohibiting solicitation. The law was simply meant to keep individuals from soliciting for sex on the street. I think of it as a NIMBY (not in my backyard) law. It's meant to keep the activity away from our eyes but not prohibit the trade or to safeguard sex workers. She wrote: "The legislature clearly believes that public sensitivities are offended by the sight of prostitutes negotiating openly for the sale of their bodies and customers negotiating perhaps somewhat less openly for their purchase... This being the legislative approach to prostitution it forecloses, in my view, any suggestion that Parliament intended to stamp out all the ills and vices that my colleague sees as flowing from prostitution. The provision addresses only one narrow aspect of prostitution namely solicitation in public places."
Fast forward to 2013... and the Supreme Court appears to agree with Justice Wilson. Chief Justice Beverley McLachlin said that, "Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes." And all 9 justices agreed. This is an interesting judgment because it suggests a different view. It suggests that legislation that simply forces prostitutes to hide and thus risk their safety is not sufficient to meet the Charter requirements for security of the person. The Supreme Court has given Parliament a year to figure out how to deal with prostitution / solicitation laws in Canada.
I'm glad that I read the Wilson ruling so many years ago; it stuck with me and has helped me to see how our Court engages in a conversation about individual rights and community security.
