The Supreme Court of Canada has struck down three prostitution provisions in the Canadian Criminal Code. They have found that legislation which criminalizes the operation of a common bawdy house, anyone who lives wholly, or in part, off the avails of prostitution of another person, and communicating in public for the purpose of engaging in prostitution or obtaining sexual services, is unconstitutional.
The Canadian Government has one year to devise a new legislative agenda.
It is disappointing when citizens of a democratic country allow an unelected judicial body to dictate when to make or change laws. The right to enact legislation lies solely with the people. Going to the judicial system on a constitutional challenge completely undermines the principal of democracy and does not hold elected officials accountable to bringing issues of national importance to Parliament to be debated.
As a result of the Supreme Court of Canada ruling, there are a number of special interest groups lobbying for the adoption of the Nordic Model into Canadian Law. Member of Parliament Joy Smith has also requested individuals who support the Nordic Model to sign a petition (the first step in initiating new legislation). Adoption of the Nordic Model would mean criminalizing the purchasers of sexual services.
The issue of prostitution is a controversial subject not just for Canada, as it is linked to other issues involving human trafficking, women’s rights, child exploitation, social stigma, organized crime, drugs, and health and safety.
A sustainable approach is required to strike a balance between those who wish to abolish prostitution versus those who wish to openly embrace it without regulation. Despite the two sides being on opposite ends of the spectrum, common ground is met on three points:
a) Prostitutes should not be criminalized
b) Sexual exploitation should be criminalized
c) Services should exist for those wanting to exit prostitution
It is likely that the government will enact a specific criminal code provision and nation-wide stance to encompass all three abovementioned points. Where the debate will be is whether the government should regulate prostitution or have the exchange of sex for money and all its related activities completely decriminalized.
If criminalizing purchasers of sexual services is adopted into the Canadian law, there will be debate as to whether prostitution should be regulated in a way to prevent social nuisance. For example, licensing of brothels may be required, health and safety inspection of brothels may be required, or brothels may only be allowed to operate in commercially zone areas versus residential areas.
As for enforcing the three prostitution laws, whose fates are currently in limbo, officials may be reluctant to or uncertain as to whether they should charge anyone under these specific Criminal Codes provisions within the one-year grace period. If criminalizing the purchasers of sexual services is adopted into the Canadian Criminal Code, this may require increased funding and resources to police departments so that sting operations can be performed to catch johns in the act of purchasing sex. Further, if the prostitution laws are revised to incorporate the caveat of sexual exploitation, processing a violation of the criminal code involving exploitation, in the judicial system may be problematic, as the burden of proof may lie on victim testimony.
Therefore, there is no easy answer to enacting new legislation and policies when it comes to the issue of prostitution.