The legalization of brothels in Canada will greatly increase the risk of harm to prostitutes via assaults and even death, as more individuals will inevitably become involved in this activity.
On March 26, 2012, the Ontario Court of Appeal handed down its decision on the prostitution law. The court ignored the views of Parliament and, even though it acknowledged that:
“bawdy houses are often an integral part of human trafficking syndicates where victims are trained and housed, and then transported elsewhere for the purpose of sexual exploitation”,
it, nevertheless, approved legal brothels.
REAL Women intervened in this case, together with the Catholic Civil Rights League and the Christian Legal Fellowship. Although we were disappointed by the decision, we were not surprised, since the Ontario Court of Appeal is by far the most liberal court in Canada.
The judges on the prostitution panel have a long history of handing down liberal decisions. For example, one of the judges on the panel, Mr. Justice MacPherson, was one of the judges who handed down the decision in favour of same-sex marriage. Mr. Justice Rosenberg, previously lowered the age of consent for homosexual sex, and accepted that two lesbians and a sperm
donor were legal parents of a child. Consequently, it was no surprise that these judges supported legalized brothels.
The court erroneously based its decision on the assumption that legalized brothels would reduce harm to prostitutes.
In doing so, the court supported the lower court decision that used only selected evidence, and ignored expert evidence, which the lower court judge declared was “not objective” (as though evidence of those arguing in support of brothels was objective!).
Prostitution itself is inherently dangerous, no matter where it is carried out. Prostitutes should not be encouraged to engage in this activity by way of brothels or otherwise. Evidence from other countries, such as Sweden, Spain, Australia and the Netherlands, indicates that the legalization of brothels only increases the number of individuals involved in prostitution, both on the streets as well as in brothels.
The legalization of brothels in Canada will, therefore, greatly increase the risk of harm to prostitutes via assaults and even death, as more individuals will inevitably become involved in this activity.
The court naively envisions that brothels will be operated by single prostitutes within their own homes. Such will not be the case. Organized crime will rapidly take over the brothels, as occurred in every other country which has legalized them.
Further, the court inaccurately assumes that only street prostitution is associated with serious criminal conduct, including drug possession, drug trafficking, public intoxication, and organized crime. This again is naïve, since these are also very much characteristics of legalized brothels.
The court did not strike down in its entirety “living on the avails of prostitution” , but it did amend that provision, explaining that it was merely “clarifying” the law by permitting prostitutes to have bodyguards and other non-exploitive assistants. This amendment, however, was in fact a sweeping change, as it permits even more pimps to legally operate, claiming they are only working as “bodyguards” or otherwise to assist the prostitutes.
These liberal judges appear to be living in a fantasy world, removed from the reality of the true facts about prostitution.
It is ironic that The Ontario Court of Appeal stated:
“prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety; it is not the Court’s role to engage in that debate.”
Yet, the Court has done just that.
This decision raises concerns similar to those expressed by many provincial premiers, during the Charter debate, in November 1981, that the Charter would allow judges to legislate from the bench. This, obviously, is exactly what this court is doing.
There is a political solution to this egregious problem, which is to apply the Notwithstanding Clause (S. 33) of the Charter, which allows the provinces and the federal governments to override decisions of the courts. (See the following article, “Time For The Notwithstanding Clause in the Charter of Rights.“)
The Notwithstanding Clause should be applied in this prostitution case, as well, as in other cases should the need arise, so that the public not be shut out of the debate on laws directly affecting their lives. It is far preferable that Parliament, which supposedly reflects the public’s views, has the final say on legislation, rather than the appointed, unaccountable judiciary.