On March 26, the Ontario appeal court ruled that prostitutes have a Charter right to work in safe environments and therefore should be allowed to operate brothels and hire bodyguards. Photo by Michael Swan

Parliament rules on brothels

By 
  • April 3, 2012

The decision by the Ontario appeal court to legalize brothels is misguided but the judges got one thing right. They agree it is not their place to make laws and have urged Parliament to act.

On March 26, the court ruled that prostitutes have a Charter right to work in safe environments and therefore should be allowed to operate brothels and hire bodyguards. Pimping and public solicitation remain illegal but otherwise the court gave a green light to red lights.

But in a prudent caveat the judges suspended implementation of their decision for one year so Parliament can amend the criminal code to make prostitution laws comply with the Charter.

“It’s not the court’s role to engage in that debate,” the judges wrote, adding it is up to Parliament “to draft a bawdy-house provision that is consistent with the modern values of human dignity and equality and is directed at specific and pressing social problems, while also complying with the Charter.”

Parliament has a duty to heed that call. But it has been consistently weak-kneed when confronting contentious social policy issues. Politicians have instead hidden behind the Charter as unelected judges became de-facto lawmakers on such matters as abortion, pornography, same-sex marriage and illegal drugs. That list is likely to expand as activists try to take euthanasia, assisted suicide, polygamy and prostitution to maintstream — and mainstreet — Canada.

The problem is not with a Charter that guarantees basic freedoms and rights, nor with judges who interpret its provisions. The problem is not legal, it’s political. Too many politicians become skittish when the heat is turned up and thus eagerly accept the easy out that courts often provide.

In addition to being a public-morals issue, prostitution needs Parliamentary action because it causes considerable emotional and physical harm to the mainly poor, outcast, addicted, socially disadvantaged women it entraps. Legalizing brothels will only lead more teens and young women into prostitution and embolden those who exploit them.

In the face of this, Parliament has a moral duty to ban bawdy houses, even if that means invoking the Charter’s notwithstanding clause. Politicians were given the notwithstanding clause for use in exceptional circumstances to ensure that, in important matters of public policy, laws were framed with citizen input and enacted by elected representatives, not enshrined by judges. Yet in every case to date in which the notwithstanding clause might have been invoked, Parliament ceded jurisdiction to the courts, denying democratic input on laws that often have a substantial impact on society.

That undemocratic approach to lawmaking must end. The Ontario appeals court has invited Parliament to re-draft prostitution laws. Parliament should accept that offer and also be prepared to impose the notwithstanding clause if necessary.

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