What should we make of a justice minister who drafts a law that he knows isn't likely to survive the scrutiny of the courts? I'm thinking of Peter MacKay's prostitution bill.Experts agree that it will almost certainly fail the constitutional challenge that is waiting just around the corner. If so, whatever your political persuasion, it's worth pausing to ask: What exactly is the point of the exercise?We know the Conservative base favours a law-and-order stand on crime; and we know from the government's polling that lots of Canadians don't want prostitution decriminalized.A generous view is that, in drafting the bill, MacKay decided to stand up for what Canadians believe, rather than buckle before a few unelected judges. In this view, the bill opposes “judge-made law” and strikes a blow for democracy.It's a nice story, but how likely is it?In the early and more aspirational days of the Harper government, it might have been convincing. But eight years on, the Conservatives have appointed most of the judges on the Supreme Court, and many of the other benches.Unlike the US, this has failed to create a “conservative court," leading many to conclude that judge-made-law is not so much the product of liberal bias as an evolving legal system and a changing society. As the prime minister recently found, Canadians think the court is doing its job and they hold that office in far higher esteem than his.So even if the minister is throwing down the gauntlet, it's hard to see where this leads. MacKay may be able to draft a flawed bill, but this is little more than sound and fury, signifying, well, nothing. In the end, the law will go crashing into a constitutional wall. And then what?Sadly, the answer seems to be that the government doesn't really care. This train wreck is far enough in the future that it will be someone else's mess.So the exercise is about politics, not principles. MacKay believes the court dumped the problem on the government and he is not going to get into a fight with his base trying to fix it.And that's too bad. The minister seriously underestimates Canadians' willingness to accept change. We have a whole history of it.Lots of conservatives opposed medicare and the flag, yet both have become defining features of the Canadian political landscape.Lots of progressives opposed Free Trade, only to embrace it after the 1988 election. Today, an older generation of Canadians is becoming surprisingly at ease with same-sex marriage.The lesson is that things change and eventually people do too. Perhaps conservatives have a point when they say that the Charter and the judges have weakened the supremacy of parliament. Nevertheless, that battle is over and it's time to move on.Rather than raising false expectations about the government's ability to reclaim a more democratic past, the minister should be challenging Canadians to prepare for the future.The prostitution bill is a case in point. The government could have taken a more forward-looking approach, and still brought enough of the Conservative base along to make it a success.If MacKay doubts this, it may be because he has been taken in by his own research. At a press conference this week he announced the results of his department's survey of some 31,000 Canadians.According to MacKay, “These consultations made it clear that the majority of Canadians prefer an approach that criminalizes purchasers and those who benefit economically from prostitution of others.”But is this clear? A majority of Canadians probably did say something like this in reply to the survey, but let's consider the questions.Take this one: 'Do you think that purchasing sexual services from an adult should be a criminal offence?' If the question looks straight-forward, in fact, it frames the issue in a way that ignores a crucial point.When people make a value judgment they are usually willing to adjust it if they find it conflicts with a more deeply held value. Prostitution is a good example.We know that sex workers face serious risks and can be the victims of brutal violence. Think of the Robert Pickton murders or the hundreds of aboriginal sex workers who have gone missing in recent decades, likely also murdered. Canadians are horrified by this.Now let's note the growing body of evidence that shows that the Nordic model adopted by MacKay significantly increases the risk of violence for sex workers. If Canadians were fully informed on these findings, I'd wager that many minds would quickly change on the question of decriminalization.Here's the way MacKay's survey should have posed the question: 'Do you think that purchasing sexual services from an adult should be a criminal offence, if criminalization increases the risk of violence to the seller?'Had the questions been asked this way; and had Canadians been more exposed to the studies on the Nordic model, I suspect the results would have been very different. Canadians' concern for the safety of women in the sex trade would have trumped their other misgivings about prostitution.(La Presse reports that MacKay is refusing to release the results of a second poll conducted by his department, whose findings officials say may conflict with the government's position.)This legislation notwithstanding, I believe it still will. Unfortunately, in order to get that kind of justice, sex workers will now have to look to the courts, rather than the minister.There's an old adage in policymaking that when you can no longer stand your ground, it's time to change places. The minister might want to give this some thought.REFERENCE
- Criminalizing Sex Work Clients: the Hot New Anti-Prostitution Strategy That Works About as Well as the Old Strategy
- PIVOT - My Work Should Not Cost Me My Life