Feminism and the unconstitutionality of S. 213 of the Criminal Code

Fear mongering is destructive, misleading and causes unnecessary social hysteria.  Certain Canadian media outlets and Members of Parliament are more guilty than others when it comes to drumming up emotion in the court of public opinion.  Yesterday’s decision by Ontario Superior Court Justice Himel to strike down provisions of the Criminal Code as unconstitutional unleashed a wave of public madness across the country, fueled in part by fear mongering.

What has been fascinating to observe in this debate is the replacement of sociological evidence with haughty scare tactics used by the media, MPs and the public when discussing this issue and its potential outcomes.  For an articulation of my point, see the below quote from today’s Globe and Mail:

The ruling also left police confused and neighbourhoods fortifying to fend off a possible deluge of sex-trade workers.[1]

A possible deluge… really? A deluge? This is precisely the type of  journalistic exaggeration that does nothing to foster informed discussion and punctures the veil of civility which ought to protect public discourse on potentially sensitive issues such as this one.

What concerns me, though, is how this brand of illogical approach to the discussion of an issue influences public opinion.  People seem to be mistaken about the pragmatic implication of this decision. Reading reader comments on various national media websites, hearing the reaction of certain MPs and listening to the discussions being held by rank and file Canadians has lead me to conclude one major thing: the entire country has constructed a straw man.  A logical fallacy is being committed every time this decision is misunderstood and reacted to by those who perceive it as paving the way for Canada’s inclusion in the international ranks of prostitution safe-havens:

“What planet does this judge live on?” asked Lisa Stephens Immen, former chairman [sic.] of an umbrella group of resident associations known as The Neighbourhoods’ Forum. “I hope that all the naive fools who support this ruling will be gifted with the task of picking up the used condoms in their own nice neighbourhoods.”[2]

Again, this line of reasoning is fallacious as it sets up a straw man proposition, and then attacks it.  It creates the “illusion of having refuted a proposition by substituting a superficially similar yet unequivalent [sic.] proposition and refuting that one, without ever having actually refuted the original position.”[3]  What this decision will actually do is alleviate the impact prostitution has on residential communities by allowing its establishment in protected, private areas.  If prostitution is legalized, it is more likely that stray condoms will cease to be found in parks and streets because the sexual acts warranting their use will be taking place in lisenced brothels or homes, and not in public places.  The public safety aspect of legalizing prostitution is significant not only for those who are directly involved in the sex trade, but by Canadians as a whole.  If members of a community do not like finding needles or used condoms in their neighbourhood, the logical response is to support this decision, not attack it with misguided logic based upon unfounded data and public hysteria.

What is also curious about this issue is the misguided sense of social morality being engaged by opponents of Justice Himel’s decision.  Striking down these provisions as unconstitutional has nothing to do with morality, it has to do with the Constitutional validity of laws.  It isn’t about whether some Canadians, represented by Justice Himel and her decision, want to open the floodgates and allow prostitution and brothels to permeate every community in Canada and flourish therein.  It is about applying a legal standard to a piece of legislation, weighing the merits of each side and holding that the law in question violates the Charter right to life, liberty and security of the person.  More importantly, that the law being examined violates Charter rights to such an extent that it is ruled of no force and effect immediately, articulates the severity of the Constitutional breach.  Whether that law aims at regulating certain types of speech, the power of the state to search and detain or the ability of a prostitute to solicit business is immaterial to the overarching Constitutional principles that are engaged by all types of laws, and the scrutiny necessitated by their proclamation.

The public relations campaigns on both sides in this debate are not without their blunders.  Framing the decision as a victory for “women’s liberation” by its supporters, and saying it will lead to a rapid influx of human trafficking by those opposed to it, are equally harmful positions to assume. By championing this victory as women being able to choose who they have sex with and when trivializes the actual reasons for the decision.  The law was held to be unconstitutional because of the way it forces marginalized, vulnerable women into even more unsafe situations and thus, violates Section 7. By framing the issue in a way that mischaracterizes it as emancipating for women leads one to believe these women have actually had a choice in choosing to prostitute themselves on the street.  Sure, some have, but many women working as prostitutes are there because of a culmination of horrible events that have occurred in their lives. It is these lives that are completely under the radar and that s. 213 of the Code aggravates even further. Contouring this decision as a victory for sexual liberation ignores this victimization and marginalization, and is an extremely perilous view to perpetuate.  The reality is that if this case fails at the Supreme Court of Canada in x number years, the government will then draft a new law that addresses the s. 7 concerns by not forcing these women into the street.  Once that law is challenged, it is very unlikely that any judge in the future is going to overturn it because it violates women's sexual freedom. Sexual freedom, and the Charter right to life, liberty and security of the person are not the same issue.

Justice Himel didn’t impugn this legislation because she wants young women to see prostitution as a desirable “career choice” (yet another straw man that wholly misses the legal points at issue in this case).  She did so because people who work in the sex trade need to be protected.  All we need to do to see the urgency in this is look to the ease with which serial killer Robert Pickton preyed upon vulnerable women who worked as prostitutes in Vancouver’s downtown Eastside; or, the over 300 missing women in Alberta whose disappearances are still unexplained and who worked and lived on the street.[4]  What this decision says is that these lives are important; that the justice system and parliament and Canadians as a whole cannot continue to ignore and marginalize women because they live in absolute poverty and work on the street.  By continuing to force them into unsafe situations and unsafe conditions, where their bodies are easily taken, used and abused, seemingly without consequence, Canada has repeatedly affirmed these lives aren’t worth protecting.  Well, not anymore.

Analogous to the InSite debate (the safe injection site in Vancouver’s downtown east side), the aim of striking down prostitution legislation is harm reduction.  It’s not about sanctioning certain types of conduct that have been historically labeled as amoral or wrong; it’s about realizing the complete impossibility of governments and societies to rid themselves of drugs and people who want to buy sex, and taking the responsible approach of constructing ways to legislate around these social tribulations.  Such is the reality of modern society: people are not going to stop using illegal drugs or paying for sexual services, no matter how hard you make it to get, or find, or use, or the penalties you tack on to being caught trying to get, find or use them.

Like InSite, Justice Himel’s ruling has sent conservative-minded Canadians into a blither.   Of course one is entitled to their opinion, and certainly no one would ever argue that using intervenes drugs or paying for sex in an alleyway are markers of a good, healthy society. However, the only question I think that is relevant in this debate is, what’s the alternative?

Forcing women onto the margins of society by refusing them access to the protection of the law and society in general does nothing but say certain lives aren’t worth the same as others; that women, often of low socio-economic status, often non-white and Aboriginal, who work in the sex trade don’t deserve our help and protection.  At play in this mentality is an overtly patriarchal view of women and a racially intolerant attitude that says these lives aren’t worth protecting because of the discomfort it will cause the hegemonic majority in this country, should we allow prostitutes to operate legally.  What, then, do our laws say about how we treat the most vulnerable in our society?  How do we begin to fashion our laws in a way that reflects Canadian ideas about equality, justice and social welfare? By having the courage and foresight to strike down legislation that violates our basic ideas of freedom, liberty and equality and by the continued protection of these rights within our just society, as Justice Himel did yesterday.

And further, and without trying to overly simplify the issue, who cares if people want to pay for sex from other people? As long as its regulated and safety standards are imposed, who really cares?  The fascination with the sexual behaviour of complete strangers is an explicable phenomenon that does not pertain to most people’s lives directly. Like Civil Unions, I can’t understand why these issues become such hot button pressure points in social discussion.  Anyway, perhaps that discussion is best saved for another day.

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[1] Makin, Kirk. “Police, communities struggle to grasp prostitution ruling”, The Globe and Mail, September 30, 2010, http://www.theglobeandmail.com/news/politics/police-communities-struggle-to-grasp-prostitution-ruling/article1733812/.

[2] Ibid.

[3] Pirie, Madsen. How to Win Every Argument: The Use and Abuse of Logic. January 2007, UK: Continuum International Publishing Group.

[4]