Media headlines proclaimed that Ontario could become a free zone for prostitution starting last Saturday. But the Ontario Court of Appeal has reserved its decision on the interim request to stay the September 28 ruling of Justice Susan Himel (striking down certain provisions of the Criminal Code pertaining to prostitution) until the full appeal is decided by the Court of Appeal. The interim request is intended to keep Canada’s prostitution laws in place nationwide during the appeal process. The court could still decide otherwise, but until such time as they do “stayed” means the status quo remains – the prostitution laws are intact – and we wait.
Sunday night I was a guest on Goldhawk Live for discussion of this issue in conversation with Dale Goldhawk and Professor Christine Bruckert from the University of Ottawa. Mr. Goldhawk asked me early on what the federal government’s options would be if the Court of Appeal were to side with Justice Himel. It appears I threw a bit of a monkey wrench into the conversation by expressing the first of four options that occurred to me, thus not getting to the other three. So, let me share all four now.
The first option I mentioned was that the creation of a situation where the Criminal Code would be applied differently in the province of Ontario than any other part of the country is an appropriate opportunity for the government to exercise section 33 of the Canadian Charter of Rights and Freedoms, commonly referred to as the “notwithstanding clause.”
Section 33 is not the rights limiting clause that it has been publicly debated as being. Section 33 is a rights retaining clause that reinforces Canada’s constitutional status as a parliamentary democracy. Parliament must retain the right to override a decision of the courts that would throw the country, or part of the country, into a legal complexity or disarray that might be averted by simply putting things on hold for up to five years to allow Parliament to study and legislate in a manner that complies with the constitutional requirements of the Charter.
In this instance, the Supreme Court of Canada ,in a 1990 decision, found constitutional two of the sections of the Criminal Code which Justice Himel found unconstitutional two months ago. Thus, this would not simply be a case of Parliament seeking to impose its will, not that there would be anything wrong with that in a parliamentary democracy, but a case of Parliament acknowledging a disagreement in the courts (leaving aside for the moment that Justice Himel should, arguably, have been bound by the Supreme Court of Canada decision) and securing its place to legislate a solution.
The second option would be far less controversial. If the Court of Appeal sides with Justice Himel, the federal government could immediately file for leave to appeal the Court of Appeal’s decision on that point to the Supreme Court of Canada. During the period of the leave application the Court of Appeal’s decision, and thus Justice Himel’s decision as well, would be stayed.
The third option would be for the federal government to send a constitutional reference case to the Supreme Court of Canada, either referencing the Criminal Code sections in question or new draft legislation. During the period of this constitutional reference, the government could request that Justice Himel’s decision be stayed.
If the government is to consider preparing new prostitution provisions, whether under the first, second or third option above, then we respectfully request they give consideration to the proposal presented by The Evangelical Fellowship of Canada in its April 2010 paper, Selling Ourselves: Prostitution in Canada, Where are we Headed?
The fourth option would be for the federal government to accept that the provisions of the Criminal Code at issue in Bedford v Canada do not apply in Ontario, as Justice Himel determined in her decision. Of course, that would unleash the very same dangerous social experiment that federal government lawyers have argued against in the application that was heard a week ago by the Ontario Court of Appeal, whose decision we await.
And that brings me to a point I would correct from last night’s television conversation. Mr. Goldhawk asked if either of us thought this was a moral issue. In the moment, I was reflecting on the legal questions surrounding the Criminal Code and Justice Himel’s decision. I was mistaken in saying this is not a moral issue. Of course this is a moral issue. It’s about people’s lives.
Jesus told the story of the Good Samaritan about a man who came to the aid of another whom he saw lying beaten and bleeding along the side of the road. Interviews with those in the sex industry inform us that there are those, like Terri Jean Bedford, who intended or subsequently have chosen to make the sex industry their “career.” But those same interviews and other statistical accumulation tell us that the “career” group represents fewer than one in ten, with the remainder expressing they have are trapped in the web of the sex industry – finding themselves emotionally, mentally, physically or financially unable to escape. These are hoping for Good Samaritans who will somehow help them from the side of the road, protect them from their owners and purchasers then set them on their feet again with health and dignity restored. There are individuals and organizations that are doing this. The broader societal role for the prospects of these ensnared ones is for government to provide laws to protect them and support programs that offer the real possibility for them to leave the side of the road, placing their hope in a future that offers them opportunity.
Please Mr. Harper and Mr. Nicholson, let’s not create additional jeopardy to the lives of those who find themselves caught in the sex industry by allowing a free for all in Ontario.
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To watch the November 28, 2010 episode of Goldhawk Live, “What’s your reaction to the changes that an Ontario ruling has made to our prostitution laws?,” click here.