Mar 27, 2014

Bedford reactions: Where do we go from here?

Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII)

Here’s a round-up of reactions to yesterday's Supreme Court unanimous ruling in the Bedford decision striking down federal prostitution laws:

Carissima Mathen applauds the decision but regrets that it took us 30 years to get Parliament to act:

With the advent of the Charter, judges have become inescapably caught in public policy debates. Their decisions are often controversial. Some will argue that by striking down prostitution-related laws, the Supreme Court has weighed in where it shouldn’t. That view is misguided. With respect to prostitution, Parliament clearly failed to uphold its end of the bargain. Thirty years of inaction is, at the very least, negligent. More fundamentally, policy creation cannot ignore the Charter. The state has an unshakable obligation to respect the constitution. In this case, that meant rejecting laws that make the world a more dangerous place for citizens.

Yves Boisvert is on the same page and calls Bedford the most important judgment of McLachlin’s career:

There will no doubt be protests to the effect that judges are usurping the power of parliamentarians. This time, however, the Court skilfully handed the responsibility of coming up with a new model for prostitution in Canada to our elected representatives.

In that sense, the decision is historic on two fronts: It invalidates a law of Parliament and mobilises it to change it. [Our translation]

In Justin Ling’s article for National, he asked Carissima Mathen about the awkwardness of unconstitutional provisions staying in force for a year:

While the reprieve for the unconstitutional laws is not unprecedented, says Carissima Mathen, an associate professor of law at the University of Ottawa, "there is an essential oddity in saying that, on one hand, they're unconstitutional and, on the other, they're staying on the books." She notes that there would be problems arising from axing outright the provisions on living off the avails of prostitution, as it would immediately make legal exploitative relationships between pimps and sex workers, so the stay makes sense in that regard.

Brenda Cossman looks at the political debate ahead:

The decriminalization of prostitution should not mean non-regulation. After all, we are Canadian – we regulate everything. Rather, sex work after decriminalization would require extensive discussions around zoning, licensing, occupational health and safety, amongst other regulatory options. And as other jurisdictions that have decriminalized prostitution have shown, some options are better than others from the point of view of the rights of sex workers.

This is the discussion we should be having. But, the next year is likely to be taken up not with the question of whether to criminalize prostitution, but rather how to criminalize prostitution.

Emmett Macfarlane outlines some of the difficult decisions facing the government:

It is unclear whether Parliament can simply criminalize prostitution itself, an avenue the Harper government might be tempted to pursue. On the one hand, McLachlin’s repeated reference to the fact that prostitution is currently a “lawful activity” weighed heavily on the Court’s reasoning, and seemed to imply a “if you’re going to allow it, you can’t enact restrictions that increase its risk” logic.

On the other hand, the government should be cautious about assuming outright prohibition is a workable, or constitutional, solution. It is undoubtedly the case that simple criminalization would lead to the very harms the Court found constitutionally impermissible today.

Andrew Coyne explores the Nordic option:

A better, though still overbroad option is to criminalize, not the sale of sex, but the purchase: the so-called Nordic option, after the policy in Sweden and other countries. This would make sense where a prostitute is clearly not able to choose freely: the exchange in that case is not one between consenting adults, but rank exploitation. (The laws on under-age prostitution or human trafficking remain on the books for this reason.)

But what of those cases where the prostitute does choose freely, or appears to? And how to tell one from the other? Rather than simply “prosecute the johns,” a more workable approach might be a system of licensing for prostitutes. As a condition of license, they would be required to certify their age, submit to tests for drugs (and sexually transmitted diseases), and work in licensed premises. Prosecution might then be reserved for johns who patronized unlicensed prostitutes.

If that makes you uneasy, it is the approach we take now to strip clubs, which remain no less sleazy and disreputable for it. Regulating a practice does not imply approval, or even indifference. It suggests only that there are other and better means of addressing social ills of this kind than the criminal law — especially where there is evidence that criminalization is itself a big part of the problem, as we have lately been coming to realize with respect to drugs.

Finally, Sean Fine considers “the court’s comments on the role of precedent” and its impact on the coming assisted-suicide case, should the Supreme Court decide to hear it:

The Supreme Court of Canada did much more than strike down three prostitution laws on Friday. It set down a major change to the way lower courts can revisit precedents by the Supreme Court. In doing so, it gave hope to those who support a right to assisted suicide that the Supreme Court will reverse its own 1993 rejection of that right.