Dec 20 2013
OTTAWA - The Supreme Court of Canada started the clock ticking Friday for Parliament to reshape social policy dealing with the world's oldest profession, as political battle lines were drawn.
In a unanimous 9-0 ruling on Friday, the high court struck down the country's prostitution laws, giving Parliament a year to produce new legislation. That means prostitution-related offences will remain in the Criminal Code for one more year.
Justice Minister Peter MacKay said the government was "concerned'' by the ruling and is "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons.''
Meanwhile, Employment Minister Jason Kenney raised the spectre of judicial activism - saying legislators, not judges, should be making the law.
"My own view is the judiciary should be restrained of the exercise of overturning a democratic consensus. Having said that we of course respect the independence of the judiciary and its role,'' said Kenney.
The high court struck down all three prostitution-related prohibitions - against keeping a brothel, living on the avails of prostitution and street soliciting - as violations of the constitutional guarantee to life, liberty and security of the person.
The ruling comes more than two decades after the court last upheld the anti-prostitution laws.
Chief Justice Beverley McLachlin, writing on behalf of the court, noted that Canada's social landscape has changed since the last time the high court considered this issue in 1990.
"These appeals and the cross-appeal are not about whether prostitution should be legal or not,'' she wrote. "They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.
"I conclude that they do not.''
The decision upheld last year's Ontario Court of Appeal ruling that said the law banning brothels exposed sex workers to added danger by forcing them onto the streets.
"The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law,'' McLachlin wrote.
"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.''
The Supreme Court appeared to acknowledge the Pickton case in the ruling, saying: "A law that prevents street prostitutes from resorting to a safe haven such as Grandma's House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.''
The court also struck down the law that makes living on the avails of prostitution illegal, rejecting the Ontario government's argument that it is designed "to target the commercialization of prostitution and to promote the values of dignity and equality.''
As for communication for the purposes of prostitution, the high court noted that the law is not intended to eliminate prostitution, but to take it out of public view so it will not be seen as a nuisance.
In weighing that balance, the high court concluded "that the harm imposed by the prohibition on communicating in public was grossly disproportionate to the provision's object of removing the nuisance of prostitution from the streets.''
Parliament could ask the Supreme Court for an extension on the effect of the ruling, if it has tabled legislation but can't meet the one-year deadline.
The ruling advised Parliament it needs to reshape the legal framework around prostitution.
"That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted,'' it said.
"Greater latitude in one measure - for example, permitting prostitutes to obtain the assistance of security personnel - might impact on the constitutionality of another measure - for example, forbidding the nuisances associated with keeping a bawdy-house.
"The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.''