Canada's Supreme Court Strikes Down Prostitution Laws

Ruling opens door for state-regulated "bawdy houses"

Credit: michellerlee / Foter.com / CC BY-NC-ND

Big news from America's hat: Today Canada's Supreme Court ruled unanimously that the country's prostitution laws run counter to the country's charter and deprive the rights of prostitutes to protect themselves.

From the Globe and Mail:

Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament's means of controlling it infringe the constitutional rights of prostitutes.

"The prohibitions all heighten the risks," she said. "They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."

The court suspended its ruling for one year to give Parliament time to respond. The ball is now back in the court of Justice Minister Peter MacKay, who needs to decide whether to adopt new prohibitions and if so, how to ensure those prohibitions do not fall afoul of the court.

Prostitution is technically legal in Canada, but the country's regulations outlaw brothels or actually advertising or communicating one's services, which makes it quite a challenge to actually be a prostitute there without breaking a law anyway.

What's interesting about the ruling (besides the fact that Canada still calls brothels "bawdy houses," which is awesome) is the court recognition that laws regulating prostitution significantly contribute to the dangers women who engage in the sex trade face. As with any black market, the inability for participants to turn to law creates the framework for actual victimization. The ruling notes the disproportionate nature of anti-prostitution regulations – that the manner by which the country seeks to prevent "nuisances" has resulted in creating an environment where prostitutes face actual harm.

The full ruling can be read here. It seems as though the most likely outcome of the ruling will be state-regulated bawdy houses brothels come next year, but we'll just have to see.

Comments

[Acosmist]

Now I have to plan a visit to my friends in Toronto without arousing any suspicion.

[2ndClassProle]

but can they queef in my face!

[John]

This would be great if it were recognized as a result of a generalized "right to commerce". But I don't think it is the result of that. I think it is the result of the court deciding it liked prostitution and thought laws against it are icky.

Even if you get what you want, rule by judge still sucks.

[Robert]

It's actually slightly worse than that. The court based its decision on the judgment that many prostitutes have no "meaningful choice" but to engage in prostitution for a living.

[wareagle]

so if Canada is America's hat, what does that make Mexico? Or Central America?

[2ndClassProle]

spats, cuff links, bow tie....

[sarcasmic]

Cuttlefish of Cthulhu?

[HazelMeade]

Panties.

[Medical Physics Guy]

So is Vancouver becoming the North American Amsterdam these days or what? I'll have to find an upcoming conference there asap.

[Heroic Mulatto]

I got a taste of your world yesterday. I took my daughter to see her hematologist for a consult before she begins her iron chelation therapy. We are working with two hospitals. We got a FerriScan MRI at one hospital and sent the results to the other hospital. The results were analyzed according to a French model which used micromoles per gram. The hematologist at the other hospital said that analysis was not useful for his purposes and couldn't figure out if it was referring to "wet" or "dry" measurement. He had to send an email an MRI expert in California that he works with to help him convert the results into the units he needs for his model. Because of this, we weren't able to start the therapy this week.

I really hope the outcome won't be that we'll have to subject my daughter to another MRI down at hospital #2. Still, I found the whole thing fascinating in that I previously thought an MRI was just a "picture" like an X-Ray but it seems it's really about the data and how one manipulates them.

[John]

That is fascinating. And I hope your daughter is okay.

[Heroic Mulatto]

Thank you John.

[Swiss Servator, Pikes Forward!]

Likewise, hope everything goes well and she is spared any more than the bare minimum of hassle.

[Heroic Mulatto]

Thanks.

[Warty]

Yes, thirded. Good luck.

[Heroic Mulatto]

Thanks, man.

[DEG]

I'll join the chorus. Good luck HM, hope all goes well.

[Warty]

MRI is fantastically complicated. I have some experience with MR data, and it's way the fuck over my head.

[John]

I have never quite understood how they work. Since the name is "magnetic resonance imaging", I assume they work by somehow translating variances in a magnetic field into a three dimensional picture of what is in the field. But I can't even begin to comprehend how that would be done.

[Warty]

Magic. It works by magic. My 2-second understanding is that it works by shaking water molecules and recording the induced magnetic fields. So, magic.

[John]

Yeah, pretty much magic to mere mortals like you and me

[Cytotoxic]

It uses magnetic fields and excited hydrogen atoms to make pictures of your body.

[Warty]

And it's really cool to bring a small piece of iron into an MRI chamber and observe how hard it pulls on you as you bring it closer to the magnet. Inverse square laws are neat.

[John]

Right up until it slams your finger in between the iron and the wall. I love screwing with magnets too. But I have pinched the shit out of myself a few times. Inverse square laws are a harsh mistress.

[tarran]

When I had my last MRI, all of us neglected to notice that I was wearing a belt. Sure enough, as they are wheeling me into the maw of the machine, my belt buckle levitated and started tugged at me.

At first I thought one of the nurses was being a little frisky.

[Heroic Mulatto]

Which is exactly how I would have played it. Maybe you would have joined the 1-Gauss Club.

[tarran]

No, they weren't that appealing. The ones manhandling me were built for the job, if you catch my drift.

[Juice]

I have experience with NMR (nuclear magnetic resonance) on which MRI is based. Basically you have an intense magnetic field that lines up all the nuclear magnetic moments. Then a radio pulse disturbs the alignment, sort of like knocking gyroscopes a bit off their axis causing them to wobble. The nuclei wobble at certain frequencies that are characteristic of their isotope and their surroundings, giving off a unique radio frequency spectrum for the sample. MRI basically takes an NMR spectrum of each pixel or small area and builds a contrast image from that data.

[Cytotoxic]

I hope it all goes well for your daughter HM. This is not exactly my business, and I know it sounds a little weird, but has anyone mentioned the possibility of gene therapy for your daughter? It's been used for some guy with cystic fibrosis.

[Medical Physics Guy]

Best of luck HM. Sorry to take off before you posted. And you are right. MRI images deliver contrast between soft tissues. What contrast you see is entirely dependent on how the imaging sequence is manipulated.

Ferriscan gets its contrast from something called T2* mapping. So it's looking at inconsistencies in the magnetic field you might say. brain activity imaging uses a similar idea -- the iron is magnetic so it deadens the signal a bit. By figuring out how much it's distorting the signal they can quantify the iron in the region of interest using the curve of the mapping.

The wet to dry has to do with biopsy. The intl standards for measuring iron content are probably related to biopsy samples, but these is are measured ex vivo and therefore "dry" so the same values would not be expected in vivo or "wet". The conversion factor is around 6.7 so you'd have to know which one you had to make a diagnosis!

Apologies if you already knew this and I'm just blathering.

[John]

"The prohibitions all heighten the risks," she said. "They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky ? but legal ? activity from taking steps to protect themselves from the risks."

Isn't that true of pretty much any prohibition? I am all for legalized prostitution. But this seems like a really screwy ruling that has more to do with their opinion about this law than any real commitment to individual rights.

If they want to do this, explain how there is a generalized "right to engage in commerce" that is infringed by these laws. Otherwise, it is just rule by judge.

[Nikki just says no]

The point is that prostitution was already legal, but regulated to a point where you couldn't actually do it in a safe way. Prostitution per se, however, was legal.

[John]

I see what you mean. But I am skeptical that they would ever apply such a ruling to other forms of commerce. Call me when they rule some environmental regulation unconstitutional because it regulates an activity to such a point where you can't do it in a safe way.

[Robert]

They won't, because in almost all cases they'll say you could go into some other business and so avoid the danger. Within the 1st few pp. of the decision, they consider that possibility w.r.t. prostitution and then reject it because while for some prostitution may be freely chosen, there is a significant number for whom it's not. So they're stuck being prostitutes and the existing law is therefore putting them in danger they can't avoid. How they come to the conclusion that some people have no meaningful choice but to be prostitutes, I don't know (maybe it's buried later in the decision, maybe it's stipulated in the record from previous findings of fact), but that's how they're ruling, which is why it applies to prostitution but not other occup'ns.

Presumably if Parliament comes up with some solution that would allow everyone to make a living without being a prostitute, that would satisfy this ruling. But no way they'll enact a program whereby everyone could qualify for a dole by claiming they'd be prostitutes otherwise.

[Auric Demonocles]

I'm for legalizing drugs, but I've always been opposed to the argument that it should be legalized because prohibition has made it worse. That only works if you think the law should be made on utilitarian grounds.

[Invisible Finger]

We're not talking about making new law, we're talking about repealing old, bad ones.

Do we really need an idiotic purity test to repeal bad law now?

[John]

No, you just need to understand there is such a thing as a bad precedent. Sure, life is great getting rid of some law you don't like. But when doing that means giving courts the power to strike down any law they don't like for any reason they want to make up, that precedent is too large of a price to get rid of a single bad law.

What happens when some court decides that the laws protective private property or privacy are not worthy of keeping? How do you then have any ground to object other than "but we like these laws"?

[LarryA]

"Utilitarian grounds?" Like "this law is stupid and doesn't work and causes more harm than it prevents so we should chuck it and try something different" grounds?

Yep, that's how I think the law should be made.

[John]

You really think that Larry? You think law should be made such that any judge can throw out any law that judge thinks is stupid?

If every judge were LarryA, I would be fine with that. But every judge isn't. In fact most are not. I don't think you will like how that works out.

[wareagle]

don't think he said judges should make law that way. Anyway, judges are not supposed to be making laws.

I would settle for a legislative system in which every couple of years or so time is specifically set aside to review - and if necessary, discard - previous laws that are no workable, make no sense, don't work, etc.

[LibertarianDave]

Utilitarian as in based on benefits versus costs. As opposed, for example, to looking at rights and morality. Ideally you look at both when writing laws, because you don't want to end up with either 1) optimal distribution of wealth enforced by robbing everyone at gunpoint, or at the opposite end of the spectrum, 2) just and noble social programs that bankrupt the country.

[Michael S. Langston]

Also note that while I and many here likely instinctively agree that prohibition causes more problems than it pretends to solve - we don't know that. We don't have any comparisons to know it.

So in the end - even if the utilitarian argument is correct - there will be no real proof until at least one large, western society removes most drug prohibitions including prescription requirements.

Though going one step further - one could still use utilitarian logic to say, on the individual level, it's likely less problematic to let someone get high than it is to lock them up in prison.

But total harm versus total good - no real proof exists.

[MP]

Like it or not, utilitarian arguments will appeal to a broader audience. I find it irritating as well, but c'est la vie.

[BakedPenguin]

Why is it either/or? I like to start on moral grounds, and then go to utilitarian arguments as a follow up.

[Robert]

Utilitarian arguments appeal to everybody whether they acknowledge it or not. Good is good, bad is bad, good is preferable to bad. You may think you're not basing your judgment on that ground, but if you don't think your ideas are to make things better, you're just nuts.

[CE]

I'm for legalizing drugs, but I've always been opposed to the argument that it should be legalized because prohibition has made it worse. That only works if you think the law should be made on utilitarian grounds.

I make both arguments. Some people are convinced on principle, others on utility. The more people we convince the better.

[John]

Winning on utility is fine if the win is in a legislature. But if it is in a court, it is not so great since it amounts to giving your sovereignty over to unelected judges.

[Robert]

Principles are derived from utility. You may have put out of your mind how your principles were derived from utility, but trust me, they were, any denial nothwithstanding.

[PM]

The NAP is a moral precept. While it does have utility, there are other systems that do a better job of meeting some end goal, depending on what that is. Failure to abandon a moral principle when it becomes inconvenient or isn't maximizing one's utility is proof that it's not utilitarian.

[marshaul]

Utilitarian? WTF? I see the game you're playing, and it ain't gonna fly.

There's nothing "utilitarian" about opposing prohibition because aggressively violating rights is worse than not doing so.

This is precisely identical to arguing that laws against murder are utilitarian because murder is harmful.

Judging laws by their compliance with natural rights is precisely the opposite of "utilitarian".

[PM]

That's not what he said. Repealing drug laws because the outcome of prohibition has been worse than the possible outcomes of drug abuse is utilitarian because it concerns itself only with the outcome. If a prohibition scheme could be devised that had fewer negative outcomes then the law could easily be reversed on utilitarian grounds. Acting from a principled position doesn't judge the outcome of the policy. There's the difference.

[Heroic Mulatto]

Watch, this development will go hand-in-hand with the adoption of the assine "Swedish Model" of sex work legislation where prostitution is fully protected but "johns" are persecuted and prosecuted, because patriarchy or something.

[John]

That whole equal protection thing is so patriarchal.

The most ironic thing about that is that it makes prostitution law like statutory rape, with women being considered the less than fully capable beings.

[Episiarch]

Funny how it always seems to work out that way.

[John]

If your goal in life is sticking it to the other team, you will happily let courts consider you effectively a child if it means the other team is going to suffer for it.

[PM]

Isn't statutory rape concerned with underage kids and situations where the victim is somehow incapacitated? I don't really see that as infantilizing.

[Pulseguy]

It has already happened in Canada. All women want to become doctors and lawyers and work in glamorous jobs. No one chooses to be a prostitute. Who made them? A man did, of course.

Johns are prosecuted in Canada, not prostitutes, provided the prostitute wasn't soliciting openly.

[Swiss Servator, Pikes Forward!]

And Windsor rejoices...

[Nikki just says no]

That thought is just sad. Sad sad sad.

[sarcasmic]

Somewhat related: GWAR's Oderus Urungus Reads 'Goodnight Moon'

[Lord Humungus]

Canada has hookers? *mind blown*

[sarcasmic]

If all you're getting blown is your mind, then you're doing it wrong.

[tarran]

No, they're called call girls.