While studying constitutional law many years ago, I found a few rare moments of comic relief in those turn-of-the-century cases on Canada's temperance laws. You remember the ones: the Privy Council pondered whether drunkenness was an evil so great as to constitute "a menace to the national life of Canada," requiring Parliament to intervene "to protect the nation from disaster."
With Prohibition dead these many years and alcoholic beverages now being flogged by Big Brother himself, the old "national emergency" rhetoric sounds preposterous.
This about-face in social attitudes gives me hope that perhaps some day, 50 years from now, law students will look back at the decision of the Supreme Court of Canada in R. v. Downey and chuckle in amused disbelief.
In the Downey case, a man who worked at an escort agency was convicted of living on the avails of prostitution. The Criminal Code section under which he was charged contains a presumption of guilt which the accused must displace. He argued that this violated his right under the Charter of Rights to be presumed innocent.
The Supreme Court of Canada agreed that the Criminal Code provision did indeed violate Section 11(d) of the Charter, but four out of the seven justices held that the violation was justified under Section 1. That's the section that says, roughly, that if you can convince a majority of Supreme Court justices that a violation of someone's rights is "demonstrably justified in a free and democratic society," anything goes.
In this case, the protection of prostitutes from having to testify against pimps was held to be sufficient justification for breaching one of the most sacred legacies of our common law heritage. Mr. Justice Cory described the problem of pimping as "a cruel and pervasive social evil." As pervasive as drunkenness was in 1900, I wonder?
What on earth does this scanty protection of prostitutes have to do with freedom and democracy, when it is the state that makes prostitutes unfree to practice their occupation openly in the first place?
There is another simple way I can think of to protect prostitutes from violent retribution by angry pimps. It doesn't involve our highest court setting the unfortunate precedent of sanctioning a presumption of guilt.
It involves removing all those hypocritical legal impediments that force prostitutes to conduct their business in a clandestine manner--laws that propel prostitutes into the clutches of pimps.
Technically, prostitution is not illegal in Canada--but everything surrounding it is. Communicating or attempting to communicate in any manner in a public place for the purpose of prostitution is a crime. Procuring is a crime. Keeping a bawdy house is a crime. The whole domain is so circumscribed by outlawed activities that no-one should be surprised that it draws the worst kind of character into it.
The Supreme Court of Canada had an opportunity to remedy the situation two years ago when they were called upon to determine whether the ban on communicating was a violation of free expression or association. Then too, the majority of the court upheld the ban. If that law had been struck down, how many prostitutes who are now under the influence of pimps would have been operating independently instead?
While the judiciary has been so busy protecting prostitutes, have they ever stopped to consider whether their ministrations are welcome to those supposedly being protected? A spokeswoman for the Canadian Organization for the Rights of Prostitutes wrote an eloquent piece in The Globe and Mail expressing her disapproval of the Downey decision. Prostitutes are most frequently abused, she says, by customers--not by regular associates.
A Montreal prostitute, Chantal Daoust, has been on a well-publicized crusade to legitimize her occupation. She argues that brothels operating legally would put pimps out of business. In fact, Ms. Daoust wants the legalized brothels to be run by the government. While I consider that proposition imprudent (simply because I believe that government will inevitably mess up any business it becomes involved in), I find it amusing in its parallels to the Prohibition-versus-booze-peddling turnabout.
Has the Supreme Court's view of this matter as a pervasive social evil been influenced by the recent furor over violence against women? There's evidence of this in another decision reached earlier this year, where the court upheld restrictions on pornography on the ground that it endangers women and children.
Interestingly, statistics show that almost two-thirds of Canada's murder victims are men. Nevertheless, women do make up the vast majority of victims in domestic disputes. In my family law practice I've been bombarded with dismal regularity by complaints from women whose husbands are constantly badgering them for sex, and complaints from men whose wives never want to have sex. I can't help wondering whether making the purchase of sexual services more easily accessible would save a lot of wives from beatings.
Our society is clearly moving in the direction of increasing violence and disorder. In my opinion, it has something to do with a breakdown in the rule of law, and the substitution of the rule of men. The Downey case doesn't help.