This arose when Canada’s laws relating to prostitution were challenged to the Supreme Court of Canada (on appeal from the Ontario Court of Appeal), on the basis that the current legal framework for prostitution was a violation of sex trade workers’ “right to life, liberty, and security of the person” under s. 7 of the Charter of Rights and Freedoms. The argument was that Canada’s prostitution laws made the industry unreasonable dangerous for sex trade workers.
It is expected in the next few weeks that The Honourable Peter MacKay P.C., M.P. (Central Nova), the Minister of Justice and Attorney General, will be introducing prostitution laws to replace those that are scheduled to be invalidated at the end of this year. The conversation has already started on Parliament Hill, with Her Majesty’s Loyal Opposition in the Senate conducting hearings on the most fair and effective way to move forward.
It would seem, to me, that there are four options available to Parliament:
1 - Do nothing. If Parliament does nothing, then the current laws on the books related to prostitution will be struck down on December 13, 2014, and these laws would cease to apply. This means that it would no longer be illegal to operate or be found in a brothel, or to communicate publicly for the purposes of prostitution.
2 - Adopt the “Nordic” Model. Adopted first in Sweden and spread to Norway and Iceland, brothels and the purchase of sex are illegal; it targets clients and pimps for prosecution. (This system essentially makes it legal to sell sex, and illegal to purchase sex, which effectively maintains a legal ban on the activities related to prostitution.)
3 - Adopt the “New Zealand” Model. In 2003, New Zealand passed significant changes to its prostitution laws. These reforms included decriminalizing brothels, escort agencies, and soliciting prostitution. (Essentially, the changes decriminalized the range of activities related to prostitution, and is seen to be one of the most liberal models.) The Minister of Justice has signaled that this is likely not a model that Her Majesty’s Government would propose.
4 - Invoke the Notwithstanding Clause. Perhaps the most “severe” response available to the Parliament of Canada, the Government could recommend that s. 33 of the Constitution Act, 1982 be invoked, which would expressly authorize Parliament to legislate in violation of the “right to life, liberty, and security of the person.” This would allow Parliament to continue its current prostitution laws, but this would need to be re-authorized every 5 years.
What do you think? How should Parliament proceed?
Source: Decriminalize sex workers, Senate told during public hearing (external - login to view) (Montréal Gazette)
Source: Supreme Court strikes down Canada’s prostitution laws (CBC)
Source: Canadian Charter of Rights and Freedoms (external - login to view) (Ministry of Justice)