A Supreme Court of Canada Commentary by ARPA’s Legal Counsel, André Schutten – (13 June 2013) – As we predicted in our 2011 fall tour, the Bedford prostitution case did go to the Supreme Court of Canada. Today, the Court conducted a lengthy hearing in this appeal. I had the privilege of watching the hearing which left me with a number of different thoughts. Note that Supreme Court hearings can be misleading – predictions on the outcome are difficult to make. The final decision won’t be rendered for quite some time, but here follow some of my thoughts and impressions from the oral hearing:

1. Morality and Individualism – As I watched, it became abundantly clear that our moral compass has certainly and significantly shifted in this country. The prostitution laws were originally written in our Criminal Code back in 1869 and have not substantially changed since then. However, what has changed is a shift in societal acceptance of “sex without borders”. Today, the prevailing attitude in society and law is that whatever is consented to between individual adults should be left alone. This attitude has two effects:

a. First, prostitution laws are labeled as “moral” laws. I think what judges and lawyers mean by the term “moral law” is any law that has a religious undertone to it or reason for it. The implication is that we can just ignore moral laws (read: “religious laws”) because we are a secular society. However, every law is a moral law – from the tax code to the criminal code, from environmental regulations to family law statutes, they are all “moral” because they prescribe or reward good conduct and punish or penalize bad conduct. By labeling prostitution laws as “moral” laws, they create a false dilemma or dichotomy between prostitution as “religiously” wrong and prostitution as inherently wrong.

b. It also became clear from both the questions of the judges and the arguments of the lawyers representing Ms. Bedford (arguing to toss the laws) that the law should only care about individuals negatively inconvenienced by the laws and to heck with anyone else. (I admit I’m being somewhat pugnacious here.) But my point is: This is a result of our human rights system which is focused so strongly on the rights and privileges of the individual above what is good for society as a whole. In the case of prostitution, this approach is dangerous: while Ms. Bedford and a small handful of other prostitutes have managed to set up a system that protects them from exploitative pimps and dangerous johns, the reality for the majority of other prostitutes is that they are tossed under the bus if these laws get tossed under the bus. What I mean is, for the majority of prostitutes, legalizing and legitimizing the prostitution industry will only exacerbate the problem. It will be more difficult for them to get out of the sex trade, not less. (Please see our policy report on this issue which fleshes this point out more fully.)

2. Choice – Related to the first point, early in the hearing, the judges seemed to be quite concerned with the arguments from the government. The judges were fixated on the issue of choice: the government was implying that the inherently dangerous nature of prostitution is not the government’s problem since prostitutes could go elsewhere for help, income, shelter, etc. Many of the judges felt that many prostitutes have no choice but to be prostitutes and thus, should the government not have an obligation to adjust the laws to help them to continue to be prostitutes? I was confused by the judges reasoning: the implication seemed to be that removing the laws would help prostitutes who have no choice but to be prostitutes, by allowing them to perpetually continue in their occupation as prostitutes. But isn’t that a pretty terrible argument to make? If women find themselves choiceless, stuck as victims of prostitution, they need real help, not the removal of laws that will simply normalize their situation. If the government has any obligation, it is to help women get out of prostitution, not help them continue in it. (We deal with this issue in our report as well, where we cite one study which revealed that 95% of prostitutes surveyed in Vancouver wanted to get out of the business.)

3. Role of the Court – Another thought that this hearing brought to mind was the role of the Court. What is the role of the court when laws are challenged as unconstitutional? (I could blather on here for quite a while, having just finished a 20-page Masters paper on this very question, but I will spare my readers that agony.) However, the question was raised in the hearing today and the basic answer is this: the court can only evaluate the law as it is and either accept it or reject it. It cannot rewrite it or try to improve it. That is the role of Parliament. Which brings me to my forth thought…

4. A Better Option – The inherent problem with our system of law (which is a good system, but not perfect) is that it is an adversarial system. It pits one position against another with no room for a third option. So, while the hearing was going on, I had to (figuratively) bite my lip to keep myself from screaming, “You’re both wrong! There is a better, more humane, more dignified answer to these problems!” That answer is recognizing that prostitution is inherently degrading to women, that the vast majority do not freely choose prostitution but rather are trafficked into it, or coerced into it, or feel they have no choice but to do it. And when a government and society recognizes that, they will seek to help women who have been turned into sex objects by giving them what they need: food, shelter, medical care, training, work, dignity. Not lawlessness so that their degradation can be perpetuated. And then, as society and government, we need to focus the sword and stigma of the Criminal law on the pimps and johns who would take advantage of women for their own greed or sexual pleasure. They are the real criminals. Tossing the prostitution laws today would benefit them more than any other group represented in Court today.

5. Lawlessness – My final thought was to reflect on the lawlessness of abortion in Canada today. The Morgentaler case was cited a few times in argument, and it made me think of how the court at that time (in 1988) struck down our abortion law as unconstitutional, having full faith that Parliament would have the courage to enact new laws in a timely manner. Well… 25 and a half years later and we’re still waiting. We can’t afford to have the same thing happen on this issue. Women caught in prostitution can’t afford to have the same thing happen. Vulnerable communities, especially Native reserves, can’t afford to have the same thing happen.

So, while this case is in the news and has the national attention, now would be a good time for you to send an EasyMail letter to your MP asking that they improve the law before the Supreme Court attempts to toss it. Even if the Court upholds the law, it still needs to be improved. There are two pre-written and editable letters available for you to use on our EasyMail page – (here’s a direct link to option 1 and option 2) – give it a try; it’ll only take 5 minutes! And by so doing, you’ve stood up for the very vulnerable in our society.