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Prostitution laws a chance to restore Senate credibility

Senator Vern White has an interesting idea. He thinks the Senate should launch a national conversation on the prostitution issue. There may be a marriage of great convenience here: The Senate desperately needs to restore its credibility as a place for thoughtful discussion; and prostitution desperately needs a thoughtful discussion. But are Senators up to the task?

White thinks they are. The government has a year to respond to the Supreme Court’s decision to strike down the prostitution laws. White thinks the Senate could draw on its long tradition of nonpartisan, evidence-based research to make a contribution.

While I agree, it is White’s proposal to link this research to a national conversation that makes the idea really interesting. It could be the start of a whole new approach to discussing social values.

As Andrew Coyne has recently suggested, a shift seems to be underway in how Canadians see the relationship between social values and public policy. We seem to be moving away from the traditional black-and-white language of right vs. wrong, good vs. evil and, instead, are reframing such debates in terms of the harms a practice like prostitution does or doesn’t cause.

In this view, a decision to re-criminalize the sex trade should be based on evidence around the alleged harms, rather than moral outrage over the practice. This was the approach taken by the Supreme Court in its decision.

Framing value questions in terms of evidence for harms could have major consequences for public policy, generally. As Coyne suggests, this may explain why Canadians were able to come terms with same-sex marriage so quickly. If so, it may also signal that a genuinely open and informed discussion of other value questions, such as the legalization of drugs, euthanasia or prostitution, would bring about a shift in Canadians’ views on these issues too.

So, yes, a national discussion on prostitution could be useful and very timely. But the question that needs to be answered first is whether the Senate is up to the challenge of leading it. The politics around such a process could be intense.

In striking down the existing prostitution laws, the Court left the government with only two real options for the future. The so-called “Nordic model” would use the criminal law to focus on johns and pimps, rather than sex workers. The alternative is to recognize the sex trade as a legitimate business and regulate it—likely at the municipal level—for health, safety and so on, as do New Zealand and the Netherlands.

While at first Justice Minister Peter MacKay expressed misgivings about the Nordic model, he seems to have overcome them. In a recent interview with La Presse, he announced that “focusing on those who commit the crime, that is to say, pimps and customers will certainly be part of the response from the Government of Canada.”

If so, this decision can hardly be based on serious research or public debate, as there hasn’t been time for either. Rather, MacKay appears to be caught between a political rock and a hard place. On one hand, he says he wants to address the harms prostitution causes to prostitutes. On the other hand, the socially conservative base of the Conservative Party still sees prostitution as a question of good vs. evil. And that will make it very difficult for MacKay to do an evidence-based assessment of the options, let alone justify legalizing prostitution, if that is where the evidence leads.

This is where the Senate comes in. Someone needs to lead an evidence-based discussion of the issue and the Senate is a natural candidate for that. But only if Senators are willing to focus on the harms resulting from prostitution—both to sex workers and the community—and let the evidence shape their conclusions.

Ironically, Senators’ biggest incentive may be their current lack of credibility. They desperately need to do something to recover from the body blow delivered by the Duffy/Wright scandal and to demonstrate that the institution can still make a valuable contribution to the policy process. An evidence-based discussion of prostitution might be just the thing. There is a genuine need for it and it really would add something important to the policy process.

For the Conservative caucus in the Senate, this could mean resisting pressure from the PMO to toe the government line. On the other hand, they have little to lose. Indeed, such resistance is likely to be seen as a victory for the Senate. It would show that Senators are able to transcend partisan politics, act independently, and provide Canadians with a kind of public-policy leadership that neither the government nor the House of Commons can.

Such an exercise thus could help the Senate reclaim some of the credibility and respect it has lost. Senators might even pioneer a new kind of policy process and establish the Upper Chamber as a convener and leader of evidence-based, national discussions—a role that could be extended to other issues in the future, such as the legalization of drugs or euthanasia.

But let’s be clear. If White’s idea of a “national discussion” is really only a thinly disguised public-relations exercise to validate the government’s agenda, he should kill it before it gets started.

People will see through it in a minute, which will only confirm everyone’s worst suspicions that the Senate is little more than a cancerous limb of the body politic that should be severed before it can do any further damage. And that will not serve the interests of the government, the Senate or the public.


Dr. Don Lenihan is Chair of the Ontario Open Government Engagement Team and Senior Associate at Canada’s Public Policy Forum in Ottawa. He is an internationally recognized expert on democracy and public engagement, accountability and service delivery. Don’s latest book, Rescuing Policy: The Case for Public Engagement is an introduction to the field of public engagement, a blueprint for change, and a sustained argument for the need to rethink the public policy process. The views expressed here are those of the columnist alone. Don can be reached at: or follow him on Twitter at: @DonLenihan

The views, opinions and analyses expressed in the articles on National Newswatch are those of the contributor(s) and do not necessarily reflect the views or opinions of the publishers.
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