The Supreme Court of Canada’s Dec. 20 decision that struck down three prostitution-related laws as unconstitutional is more nuanced than it appears on its face.
Yes, the court struck down laws preventing communicating in public for the purposes of prostitution, living off the avails of prostitution, and the keeping of bawdyhouses because they violated prostitutes’ security of the person, which is protected by the Charter of Rights and Freedoms.
However, rather than immediately striking down the laws, the Supreme Court is giving Parliament one year to reconsider the legislation and draft it in a manner that is constitutional. It was recognized that immediately invalidating these laws would leave prostitution entirely unregulated, something that “would be a matter of great concern to many Canadians.”
The attorneys general of Ontario and Canada argued the purpose of these provisions was to deter prostitution. The Supreme Court, however, examined Parliament’s legislative record and found it clearly was meant to “prevent community harms in the nature of nuisance.”
This prohibition was struck because the means used were disproportionate. However, the court recognized the legitimacy of this objective, noting that “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”
It is indisputable that the regulation, or lack thereof, of prostitution is a polarizing issue. It has also raised the question of the appropriate role between courts and Parliament. Employment Minister Jason Kenney, for instance, stated: “My own view is that the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus.”
It may be appropriate in such cases to defer to municipalities and allow them to craft local solutions to such complex problems.
Of course, this would have to be done in a manner that respects the dignity of prostitutes, as the Supreme Court has stipulated. Municipalities, for instance, should not attempt to encroach on the criminal law power, which is exclusively reserved to the federal government under the Constitution Act, 1867. In the Supreme Court case Westendorp vs. The Queen(1983), the City of Calgary passed a bylaw completely prohibiting prostitution. This was struck down on the grounds that the bylaw was criminal in nature, and thus fell under the authority of the federal government.
Municipalities, then, should not create bylaws that prohibit the act of prostitution, or regulate it so restrictively (through licensing or zoning) that the practice is de factobanned. However, they may generally regulate property and civil rights, which is a constitutional power granted to the provinces, which then delegate this to municipalities. Municipalities could create zones in which prostitutes may work, or they could create licensing requirements.
Some might suggest it would make more sense to craft such a scheme at the provincial level. While this might create more consistent standards across a province, what works in one municipality may not work in another. Other jurisdictions around the world have recognized the benefits of extending regulatory powers to municipalities.
In Germany, for example, local governments place restrictions on street-based solicitation. In the Netherlands, some local governments designate zones where prostitutes can solicit at specific times. There are thus tangible examples that municipal officials could examine and adopt those that are the most applicable to their localities.
Ultimately, municipalities should strive to craft local solutions to address their citizens’ concerns while respecting the recent decision of the Supreme Court.
The federal and provincial working group on prostitution suggested giving municipalities more regulatory powers as far back as 1998.
Implementing effective legislation at the federal level on this issue is much more difficult, especially with the stance of the current government.
Federal Justice Minister Peter MacKay released a statement expressing his concern with the Supreme Court’s decision and noted that the government 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.”
Why not let communities themselves address these significant harms?