SCC to Parliament: Struck Down, Try Again! … and Other Adventures in Law Making

This post fol­lows a response to the Ottawa Cit­i­zen arti­cle from ear­li­er today:

[ Pun­ish the Clients, Not the Pros­ti­tutes ]

… which, in turn, fol­lows this his­toric Supreme Court rul­ing from last year:

[ ]

So here’s the TL;DR for any­one who’s not been fol­low­ing the issue: the Bed­ford case end­ed with a rul­ing by the Court that Canada’s cur­rent laws address­ing 3 key aspects of pros­ti­tu­tion are uncon­sti­tu­tion­al, and that they, in and of them­selves, have the effect of cre­at­ing gross­ly dis­pro­por­tion­ate safe­ty risks and oth­er prob­lems for the pros­ti­tutes them­selves. The SCC struck down the laws and gave Par­lia­ment 12 months to rewrite this legislation.

So far, news of any fol­low-up has been sparse, but of the few sto­ries that have come to light about what Par­lia­ment intends to do, most high­light the so-called Nordic mod­el of pros­ti­tu­tion, which by log­i­cal exten­sion of tar­get­ing clients of pros­ti­tutes who iden­ti­fy them­selves, it is argued the sys­tem may cre­ate even more dan­ger­ous work­ing con­di­tions for pros­ti­tutes, as it would become hard­er for them to safe­ly screen their clients. As for a tran­si­tion­al (read: reha­bil­i­ta­tion) mod­el, our law­mak­ers don’t yet seem to have any­thing of sub­stance on the table. At the very least, Cana­da would need a humane ‘career bridge’ mak­ing avail­able tran­si­tion­al hous­ing, edu­ca­tion­al funds, and oth­er resources nec­es­sary to retrain those in the field of pros­ti­tu­tion who opt for a career switch. The famous Ger­man pros­ti­tute-to-nurse brigade is a good exam­ple of such a sys­tem in action, as well as how it could look if imple­ment­ed on our own soil.

On the oth­er hand, Ger­many’s com­par­a­tive­ly open atti­tude towards pros­ti­tu­tion has been not­ed in stud­ies as hav­ing opened that coun­try up to a greater share of human traf­fick­ing. This is an extreme­ly impor­tant coun­ter­point to con­sid­er in our own cul­tur­al con­text as it high­lights the gray zone of sen­si­tiv­i­ties that exist around this issue with no absolute­ly clear or imme­di­ate answer. Only by par­tic­i­pat­ing in deep, detailed study of each facet of this gray zone can we hope to see our law­mak­ers alle­vi­ate more prob­lems than they cre­ate when craft­ing the new legislation.

The impor­tant point as things stand now is to raise aware­ness of the issue. Pros­ti­tu­tion is not viewed as a ‘vote get­ter’ by most and does not have a huge demo­graph­ic behind it, yet it affects far more than its own seg­ment of the pop­u­la­tion when it comes to how pros­ti­tutes nego­ti­ate ser­vices, how trans­ac­tions occur, what laws gov­ern it, and what safe­ty mech­a­nisms can be enact­ed to pro­vide secu­ri­ty of the person.

It’s a huge­ly impor­tant issue because the law has in the past mar­gin­al­ized these women and placed them in har­m’s way. We owe them at least the ben­e­fit of not allow­ing that to con­tin­ue as a mat­ter of fun­da­men­tal human dig­ni­ty. It would be a grave wrong­do­ing to repeat the same mis­take by per­mit­ting law­mak­ers to inad­ver­tent­ly coat any new leg­is­la­tion designed to address this issue in the murk of igno­rance as the result of too lit­tle research or soci­etal awareness.

MPs should be com­pelled to research the issue more thor­ough­ly across world cul­tures, includ­ing prece­dents set in oth­er legal sys­tems. From a leg­isla­tive per­spec­tive, 12 months is a com­par­a­tive­ly tiny win­dow — and I fear it may be far too small for us as a coun­try to effec­tive­ly com­pre­hend an issue for which the new laws will have an effect that can last for generations.

Mean­while … else­where in Parliament:

Peter MacK­ay faces bal­anc­ing act with jus­tice agen­da, court rulings

And here we have anoth­er prob­lem fac­ing us: our cur­rent fed­er­al gov­ern­ment craft­ing leg­is­la­tion pro­mot­ed in the news as “tough on crime” but often bound to inad­e­quate plan­ning and sev­er­al dis­tinct prob­lems of its own. I pre­dict these will be a future invi­ta­tion to oth­er sig­nif­i­cant chal­lenges in the Supreme Court of Cana­da years down the road, but for now let’s look at one par­tic­u­lar issue that both­ers me.

The per­spec­tive that is not being tak­en into account often enough under the cur­rent admin­is­tra­tion has been one of exam­in­ing some­thing called the total cost of own­er­ship. Own­ing a jus­tice sys­tem means own­ing not just the imme­di­ate con­cerns the sys­tem is designed to alle­vi­ate, but also any con­se­quences and impli­ca­tions it could cre­ate for soci­ety 30 to 50 years down the road, since rarely do you see imme­di­ate changes when it comes to crit­i­cal issues and leg­isla­tive changes such as these.

It takes about a full gen­er­a­tion or longer for our social envi­rons to ful­ly adjust to any major changes in law, as well as the atti­tudes of indi­vid­u­als to effec­tive­ly sta­bi­lize under the new struc­tures being imposed. This road goes both ways, how­ev­er, and pro­gres­sive atti­tudes toward law also take about a gen­er­a­tion to bring to bear in real­iz­ing more effec­tive, humane, and proac­tive leg­is­la­tion. Nowhere has this point been made clear­er in recent weeks than in the mas­sive shift of atti­tude Canada’s high­est court has dis­played when exam­in­ing the top­ic of pros­ti­tu­tion (see above). I’d wager that if this chal­lenge had been made in 1994, the result would­n’t come close to what was achieved here and now. Like­wise, many sim­i­lar shifts of atti­tude can be seen in oth­er aspects of our cul­ture. The legal land­scape has changed in Cana­da, slow­ly but surely.

When it comes to for­mu­lat­ing a solu­tion to crime, we have to look at the big­ger pic­ture, the num­ber of peo­ple affect­ed, the total cost of deal­ing with not just the offence and those imme­di­ate­ly involved, but also its man­i­fold inter­ac­tions with fam­i­lies, friends, social group­ings, busi­ness­es, schools, indus­try, and a great many oth­er enti­ties. Crime does not hap­pen in a vac­u­um, nor can it be prop­er­ly be resolved in an envi­ron­ment far removed from human­i­ty and nat­ur­al consequences.

In the case of Par­lia­men­t’s cur­rent dilem­ma, we des­per­ate­ly need to ask our­selves what enact­ing ‘tough’ new manda­to­ry min­i­mum sen­tences actu­al­ly does to serve the greater inter­ests of our soci­ety as a whole. I’m talk­ing about the long term here, not the ten­ta­tive, over­sim­pli­fied ‘vic­tim-and-offend­er’ par­a­digm many offi­cials have point­ed at in talk­ing points when cor­nered by the media.

Manda­to­ry min­i­mums are a cheap ‘feel good’ rem­e­dy applied for quick grat­i­fi­ca­tion by politi­cians who are loathe to grap­ple with the true dynam­ics of crime, pover­ty, hous­ing, edu­ca­tion, reha­bil­i­ta­tion, addic­tion, ostracism, mar­gin­al­iza­tion, and inte­gra­tion. The con­cept short-cir­cuits mean­ing­ful dis­cus­sion, pre­cludes a more humane approach to legal admin­is­tra­tion, and muz­zles effec­tive dia­logue by tying judges’ and leg­is­la­tors’ hands, pre­vent­ing them from apply­ing smarter solu­tions that could offer bet­ter ser­vice to our cul­ture and coun­try over the long term.

Manda­to­ry min­i­mums have already demon­strat­ed them­selves to be a stag­ger­ing fail­ure in places like Texas, which began the shift away from such poli­cies after the very sub­stan­tial and well-doc­u­ment­ed lev­els of col­lat­er­al dam­age inflict­ed on soci­ety became vis­i­ble — too many bro­ken homes, over-mil­i­ta­riza­tion of police forces, wild­ly increased incar­cer­a­tion rates, high recidi­vism (re-offend­ing), high­er polic­ing costs, the ‘school-to-prison pipeline’, gov­ern­ment spend­ing over­runs, high­er tax­a­tion, the pri­vate pris­ons scan­dal (penal and judi­cial cor­rup­tion), and the increased cost to reha­bil­i­tate an increas­ing num­ber of mild or non­vi­o­lent offend­ers who have been exposed to a high­ly tox­ic, infi­nite­ly more dan­ger­ous penal system.

All these and more are the real-world, fac­tu­al­ly doc­u­ment­ed prod­ucts of own­ing a jus­tice sys­tem that makes itself ‘tough on crime’ at the expense of out­come, com­mu­ni­ty, ethos, and admin­is­tra­tive responsibility.

The big pic­ture is what we need to con­cern our­selves with, not the momen­tary dos­es of ‘feel good’ pro­vid­ed by euphor­ic press con­fer­ences, fan­cy speech­es, or tem­po­rary solu­tions based on beliefs lack­ing sound sci­en­tif­ic and human­ist foun­da­tions. For a brief time, the short-term solu­tions may work, but ulti­mate­ly their imple­men­ta­tion comes at steep cost to the rest of us.

There lies the un-sexy down­side of manda­to­ry min­i­mums — it’s not so much a deter­rent as it is a self-ful­fill­ing prophe­cy or a revolv­ing door. The sys­tem is forced to deal with what it cre­ates, like it to or not, and that’s why we need to equip our­selves bet­ter to think and deal in such com­plex­i­ties. Ten, twen­ty, or thir­ty years from now, we’re going to reap what our jus­tice sys­tem has sown in the present, and if the sys­tem has not effec­tive­ly done its job, future gen­er­a­tions will be sad­dled with added crim­i­nal­i­ty and disenfranchisement.

Is that the kind of coun­try we want? Are those the kinds of atti­tudes we want our chil­dren to be raised with?

While it’s nice to know that the Supreme Court stands firm on mat­ters of equal­i­ty, respon­si­bil­i­ty, long term results, ethics, and progress, we can do a lot bet­ter and get a lot more done out­side of the court sys­tem when it comes to man­ag­ing and over­see­ing the way that laws are writ­ten — it begins with you and I, and it involves com­mu­ni­cat­ing with our Mem­bers of Parliament.

We need to raise aware­ness about these issues. Please take some time out of your busy day to do your part and pass the word on. We’re all in this together!

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