Can you knock a law out of the ballpark? Ontario Superior Court Judge Susan Himel did. She knocked out three, actually: Sections 210, 212 and 213 of the Criminal Code, and their relevant subsections that prohibited otherwise lawful conduct, such as communicating, when carried out in conjunction with conduct of another type that was also lawful: prostitution.
Sic, as the Romans used to say, meaning it isn’t a typo. As a mathematical formula, our laws surrounding prostitution could have been expressed as legal+legal=illegal. Two wrongs may not have made a right, but when it came to money-for-sex, Canada’s courts had no hesitation saying that two rights make a wrong.
Engaging in the world’s oldest profession wasn’t against the law in this country, but sharing a roof or a bank account with sex workers (a.k.a. hookers) was. So was publicly offering or seeking their perfectly legal services. The Criminal Code prohibited “being found” in a common bawdy house without lawful excuse (S. 210); living off the avails of prostitution (S 212); and soliciting in public for the purpose of prostitution (S. 213), until Judge Himel respectfully flushed the relevant sections down the toilet this week.
How do you flush laws down a toilet respectfully? It’s one of the first things you learn in judge-school. The law may be “a ass” as Dickens had it, but in our legal tradition it’s an ass of abundant caution.
Unlike journalists, who pretend to be loose canons even when they spout received wisdom, judges try to be judicious even when they’re taking the bit between their teeth. Media pundits shoot from the hip, partly by nature, and partly knowing that, whatever the cumulative consequences of their views, the immediate effect is likely to be zero. Judges, aware of the immediate effect of their words, weigh them far more carefully. In judicial choreography, a judge does fancy footwork by making his boldest departures seem to toe the line of legal precedent. Or — to switch metaphors — if lawyers behave like tigers in legal argument, tearing their prey into bite-size chunks, judges feed like pythons, wrapping themselves around their meal, absorbing and swallowing them whole.
Reading a judgment is like watching a big snake feeding. Bound by the Supreme Court of Canada’s 1990 Prostitution Reference, Judge Himel engages in a meticulous analysis of evidentiary and sociological material that has become available in the last 20 years and couldn’t have been considered by the 1990 court, creating the impression of her opinion being the evolution of an opinion she is, in fact, eating alive. It is impressive.
Ultimately, the difference between the Prostitution Reference and Judge Himel’s decision is that the majority in 1990 thought offending the Charter in a good cause was OK, while Judge Himel this week felt, yes, but this cause wasn’t good enough.
For what it’s worth, I think few causes ever are.
Going by readers’ responses, some Canadians would come to the same conclusion as Judge Himel, and some wouldn’t. Either way, most would reach their conclusions for entirely different, and much less carefully considered, reasons.
One letter-writer quotes the humorist George Carlin. “Selling is legal. F—ing is legal. Why isn’t selling f—ing legal?” Amusing as this may sound as part of a standup routine, it doesn’t stand up to scrutiny. Selling is legal, justice is legal, but selling justice would still be a flawed idea. In any event, it wasn’t selling sex that was illegal in Canada until this week, only offering it for sale in public.
A more logical question would be this: If it’s prostitution that bothers us, why outlaw peripheral things instead of prostitution itself? God knows, we aren’t so devoted to individual freedom in Canada as to have any compunction about outlawing things that bother us.
The probable answer is that prostitution doesn’t bother us very much. Questions of public hygiene do, tenderloin districts do, occupational hazards to hookers and johns do, but prostitution as such doesn’t. The oldest profession fulfills some obvious needs by letting those who have nothing but money to get some “love” and those who have nothing but “love” to get some money, but it must also fill some needs that aren’t so obvious.
Let me approach it this way. When I was young, “nice” girls didn’t. (They did, of course, but nowhere nearly as often or as casually as in the last 40 years.) When the Sexual Revolution came in the 1960s and everybody started doing it, prostitution should have ended. Many thought it would.
It didn’t. Why? If we knew, we’d know better whether we’re dealing with a social or a human problem, with something mental or fundamental.
Meanwhile, Judge Himel has flushed down the toilet the “gotcha” charges with which the law surrounded the oldest profession. Will they clog the pipes? Will there be a mess in the bathroom? Will governments try to fish them out again?
The state’s legal plumbers are standing by. I’m optimistic. Once a judge speaks up for Charter-protected vices, a judge speaking up for Charter-protected virtues can’t be far behind.
Canada’s prostitution laws: Where two rights make a wrongIn Canada on October 2, 2010 at 14:01