Monday, November 22, 2010

Law and Culture

While federal lawyers appeal the recent Ontario Superior Court ruling that struck down three anti-prostitution laws, the public is pretty much left out of the debate. As crown counsel Michael Morris argues, for a single justice to overturn Parliament's laws without a broader constitutional review, would be a "social experiment unprecedented in this country". Hyperbole aside, courts strike down laws all the time and, as defense counsel pointed out, there are examples of jurisdictions where prostitution and solicitation for prostitution have been legalized without eroding the cultural fabric of society. However the existing laws, which Justice Susan Himel has set aside, have not been created in a vacuum, nor have they lacked public input. They reflect society's reasonable efforts to balance a broad range of interrelated social factors not limited to: public health, exploitation of women, harm reduction, homelessness, child abuse, domestic violence, poverty, property crime, substance abuse, mental illness and public safety.

The broader question is, should courts be at the forefront of social change or should they reflect cultural values? In the last century, so called "activist courts" have stimulated social change (Brown v. Board of Education, Roe v. Wade), while at other times, social activism has dragged the law, kicking and screaming in its wake (universal suffrage, pay equity, gay marriage). However all social change is not for the better. Populous initiatives to incarcerate Japanese Americans and Canadians, head taxes on Chinese, witch hunts for communists (and more recently terrorists) are examples where both the law and culture got it wrong. But the law can only lead or restrain social change when society is ready to be led or restrained.

I don't believe in Canada there exists a broad based, grass roots, social agenda to legalize brothels, pimps and johns. Quite the contrary, I think I am with the majority in believing that prostitution is an abusive and violent exploitation of young, poor and vulnerable women (and children) by older, wealthier and more powerful men. The existing laws which make prostitution legal, but prohibit the solicitation and commercialization of prostitution, are the result of decades of legal and social reform to shift the burden of the law from the victims to those who victimize. Justice Himel cites the Charter of Rights and her opinion that these statutes put the safety of sex trade workers at risk in her decision. While I fail to see it, there may be merit to her opinion. However due to the broad ranging implications for public policy, this is an issue that the Supreme Court and Parliament should take up rather than the lower courts of the provinces. Therefore, the Ontario Court of Appeal would be well advised to grant a stay of this decision while it is appealed by the crown and law makers and the public weigh in.

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