Chris Selley
Full Comment

p. A8.

If nothing else, an attempt to fix what's broken

Canada's Conservatives can always be relied upon to oppose judge-made law. Yet prostitution arrived on Justice Minister Peter MacKay's plate as a judicial emergency. The legislation he unveiled Wednesday bans the purchase of sexual services, and communicating and advertising for said purpose, in response to the Supreme Court nixing existing laws and imposing a one-year deadline to come up with new ones.

Had you asked Stephen Harper 10 years ago if he hoped to address this issue, I suspect he would have rolled his eyes. And that's a pity, really. No government that calls itself conservative (or liberal for that matter) should have been content with Canada's prostitution laws, which prohibited things adjacent to prostitution but not prostitution itself. They made no sense, and more to the point no one could argue with a straight face they were having their intended effect. Any sensitive, humane government should have wanted to fix them.

Furthermore, much as Mr. Harper's government generally steers clear of big issues that rile social conservatives, this might have been an easier row to hoe for Mr. MacKay than for a Liberal or New Democrat attorney-general — each of whom would likely have faced a bigger split between libertarian and prohibitionist factions.

Depending on how you ask the question, you can find remarkable support in Canada for legalized prostitution in brothels — 65% nationally and a majority in every region, according to an Ipsos Reid poll in 2012. But that would hardly do as a Conservative position. Mr. MacKay claims his own research shows 56% support for criminalizing the purchase of sex, and two-thirds opposition to criminalizing its sale.

It's at least somewhat conceivable that outright prohibition might have passed constitutional muster. The Supreme Court struck down the old laws in large part because they restricted, and increased the risks associated with, a perfectly legal activity.

But outright prohibition would increase the same risks. And the Supreme Court was not convinced simply avoiding the sex trade was sufficient advice to give prostitutes in hopes of protecting them from danger. "While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so," the ruling argues.

The Evangelical Fellowship of Canada provided Mr. MacKay some cover by arguing instead to "criminalize the purchase of sex and provide support services for those who wish to exit the sex trade." And this bill more or less fits the bill.

But will this new law pass muster with the Supremos? There's no doubt it's on its way there. And it seems like it will be a close run thing. The prohibition on purchasing sexual services might rescue restrictions on the sex trade from the judges' wrath (if not logic's — commodities are generally either legal or illegal). But if many women still have no option but to prostitute themselves, as the Supreme Court argued, then this bill could make things worse. Putting johns at heightened legal risk might drive the trade further underground, thus exacerbating the same old risks faced by prostitutes.

My own view is that legalization has the greatest potential to reduce harm, and that as icky as I find it, human beings should be able to buy and sell sexual services if they choose. But if the Conservatives want to treat all prostitutes as victims, and pursue a concerted and well-funded effort to help them "escape" — a massive "if" — then I suppose this law could in theory be a net positive.

In any event, it's at least an attempt to fix legislation that never made sense, and that governments of various stripes have discreditably shied away from fixing. If the opposition parties hate it, let's talk about their plans. All this law took was five-and-a-half months. Imagine all the hyperspeed progress we could make if Parliament took on big, important issues of its own volition — euthanasia comes immediately to mind — before the Supreme Court gave it no other option. Some might say that's its job.