A trial in error?

Why should a Toronto court decide Canada’s prostitution laws?
Philip Slayton

A trial in error?Terri-Jean Bedford is a professional dominatrix. According to a newspaper report, her happiest hours have been spent tying up male clients and spanking them at her north Toronto “bondage bungalow.” Now, Bedford is playing in a different, and more serious, arena. She’s in court with two other sex workers, trying to change Canadian laws governing prostitution. Prostitution itself is legal in Canada, but Bedford and her colleagues are challenging provisions of the Criminal Code that make it illegal to operate a bawdy house or live off the avails of prostitution.

These laws, they say, drive prostitutes onto the streets and deny them the protection that could be given by a manager, bodyguard or chauffeur. The result, they argue, is to make their trade much more dangerous, exposing them to people like Robert Pickton, the convicted serial killer of Vancouver streetwalkers. They claim that the laws infringe their constitutional right to security, found in Section 7 of the Charter of Rights and Freedoms, and should therefore be struck down.

The Bedford hearing took place in October, in Toronto, over seven days. A verdict is expected in a few months. The judge, Susan Himel, spent much of her time listening to a debate about the relationship between law and morality, and hearing about social policy that might be considered desirable.

Much of the applicants’ evidence tried to establish that it was safer for prostitutes to work indoors instead of outdoors. There were 18 expert witnesses. Some testified to the merits of decriminalizing prostitution, and described how there was less violence against sex workers in jurisdictions that have gone in this direction—the Netherlands and New Zealand, for example, where sex-service businesses are lawful. The federal and Ontario governments, in turn, argued that prostitution exploits women and harms the community. Three interveners—the Catholic Civil Rights League, the Christian Legal Fellowship, and REAL Women of Canada—filed a joint submission that spoke of the shared morality of Canadians and said that more than 80 per cent of us belong to religions that hold prostitution immoral.

None of this should have happened. A courtroom is not the place to decide moral questions or determine social policy. Judges are not appointed to perform these tasks, and, however worthy they may be as judges, are not particularly competent to do so. A government lawyer working on the Bedford case told me that the hearing reminded him of a parliamentary subcommittee inquiring into a proposed law. “Issues like these shouldn’t be before a judge,” he said. “They belong to Parliament. Lots of us involved in the case think this.”

It’s convenient for politicians to have the prostitution problem in the courts rather than before Parliament. The topic is complicated and controversial. It engages the emotions. People get angry. Votes can be lost. That makes it good political tactics to duck behind the Charter of Rights and Freedoms. But the result is that those who want to change the law are forced away from the political arena, where moral and social policy arguments could be considered head-on, and due weight given to public opinion. They are pushed into the courts, and forced to make complex and technical constitutional arguments, which obscure the real issues.

Now we wait for Justice Susan Himel to rule on Terri-Jean Bedford’s application. It doesn’t much matter what Justice Himel says, however, because this case is headed to the Ontario Court of Appeal no matter what, and most likely to the Supreme Court after that. The smart money says that Terri-Jean Bedford is going to end up losing. If she does, those who want reform of prostitution laws can only hope that the attention they have attracted along the way will get politicians to do something.

If Bedford wins, the laws against operating a bawdy house and living off the avails of prostitution will no longer have any effect. Will Parliament then step in and deal comprehensively with the prostitution issue? Don’t count on it. The Supreme Court struck down Canada’s abortion law in 1988, in the famous case of R. v. Morgentaler. There has been no replacement legislation since. The result is that for more than 20 years, Canada has had no abortion law at all. Prostitution could easily join abortion on the too-politically-difficult pile.

Since the 1982 Charter of Rights and Freedoms, Canadians have come to love re-characterizing political problems as legal questions. We should stop doing it. Our elected representatives should deal with the issue of prostitution, and not let the judiciary decide it by default.