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Posts Tagged ‘Charter of Rights and Freedoms’

Is deception a charter right?

Posted by Don McLenaghen on February 20, 2012

Advertised the claim but did not actually check to see if it was true...or so Rogers claims

Rogers Communications Inc. is asking an Ontario court to strike down part of a federal law requiring a company to have “adequate and proper” tests of a product’s performance before advertising claims about the product — on the grounds that it violates its freedom of expression.

In addition to taking on the performance claims provision of the Competition Act, the telecom giant is arguing before the Ontario Superior Court the hefty financial penalties that can be imposed on a company for making a false or misleading claim are also unconstitutional.

The legal battle with Rogers began in November 2010, when the bureau went to court to levy a $10-million penalty for a “misleading advertising” campaign involving the company’s Chatr discount cell phone service. The bureau is also asking the court to order Rogers to pay restitution to affected customers and refrain from engaging in similar campaigns for the next decade.

In their advertising Rogers’ Chatr claimed to have fewer dropped calls than any other competitor and that its customers had “no worries about dropped calls”. A study of the drop rates between Rogers’ Chatr and the competition showed no difference in drop rates.

The ruling in question and the Competitions law states that before a company can make a advertised claim it must have a test in hand. Rogers is claiming this violates its charter rights to free speech because, and you may want to sit down for this one. IF what it had said was true except when they said it they did not have proof but later they could provide proof then the test would be a violation reason being it would prevent them from saying a true thing because they did not know it was true at the time”.

Make sense? No, not to me either. First the case at hand showed they issued a false and misleading statement. Second, they are saying if there is no proof to the contrary they can claim anything and to prevent them from doing so is a violation of their charter rights (not that I think corporations have charter rights!).

One aspect that plays into this is the amount and type of penalty. First it is not a fine, which is given in criminal court; penalties are handed down by civilian courts. The civilian courts are not subject to the same ‘safeguards’ as criminal cases such as:

Presumption of innocence, the right to a fair trial and to make full a answer and defense, and the privilege against testimonial compulsion.

Hypocracy of privilege.

Although with the exception of the last point, compulsory testimony, I don’t think Rogers is seriously implying that our courts are corrupt and thus they did not get a fair trial or were presumed innocent. It is true the threshold to guilt is a preponderance of evidence as opposed to the classic beyond a reasonable doubt…this I think is why they really want to have the Competitions law seen as criminal law vs. civil. It would be almost impossible to prove the Rogers (and the thousands of people working in it) purposely misled people…they would say “it was a miscommunications” or something.

This is became a more important issue for Rogers because in 2010, the penalty for this infraction went from a paltry $250,000 to $10M for first offence, and $15M for each thereafter.

Thoughts?

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Reference:

http://openmedia.ca/blog/postmedia-rogers-uses-freedom-speech-excuse-misleading-ads

https://www.competitionpolicyinternational.com/first-constitutional-challenge-to-civil-penalties-for-misleading-advertising/

http://www.huffingtonpost.ca/2012/01/27/rogers-misleading-advertising-charter-rights_n_1236517.html

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Phantom Menace – Sharia Courts

Posted by Don McLenaghen on May 12, 2011

Sharia Law courts – why?

There has been much talk in the news a few months back about Sharia Law[1] and its imminent takeover of the American legal system[2]. Some of us may remember that there were similar fears in Ontario[3] a few years back when Sharia Courts were imminent there. This led me to ask myself what was going on…was Canada becoming Can-Arabia[4]?

Beth Din, London 1920s

First there is a difference between having Sharia as the law of the land. Countries like Saudi Arabia or Iran have legal systems based on Sharia. For the most part, these countries laws are similar to our own with some noteworthy exceptions, such as stoning[5] for ‘adultery’ or the chopping of hands for theft (SA in 2007 and Iran in 2010). Because these legal systems are based in the Abrahamic Traditions; they are incredibly patriarchal and ‘biased’ towards women just like Cannon Law or Beth Din.

Now although it is true that when some people use the term Sharia Court as a ‘code-word’ for racist sentiments they mean the abandonment of the Charter and our constitution and its replacement of it with the Quran; when we say that Sharia is coming to Canada or the USA we do NOT mean that the current criminal law system will be ‘replaced’ by Sharia. The role of Sharia is for civil arbitration cases. Arbitration is the process where two parties in a civil dispute, such as a disagreement on the terms of a contract, may select a third party who will hear both sides and make a legally binding settlement on both parties. Who gets to be the arbitrator is determined by the original contract or by mutual agreement of the parties. The method of or ‘rule of thumb’ used by the arbitrator to make their decision is likewise defined or left up to the arbitrator(s). This means that, with regards to religious courts, as long as we have arbitration, anyone can agree that the arbitrators are holy men and the ‘rule of thumb’ could be religious law. It’s also equally likely… that the disputants could use actors (Patrick Stewart and William Shatner for example) as arbitrators and use Star Fleet Command’s Prime Directive as the ‘rule of thumb’. Arbitration in our country allows the disputants almost complete freedom of choice here; the only limitation is that the arbitrator’s decision cannot contravene Canadian law. So an arbitrator cannot say one people must become the slave of another nor have a hand amputated. It should also be noted that the Charter of Rights trumps all other laws, however its role in this debate I will discuss this later on.

Biblical Family Law

Now that we have this understanding, one could make the argument that the debate over Sharia (or any other religious courts) is a false controversy. However, there is one area of civil law that does pose a problem; that is family law. Family disputes, such as divorce or child support, are considered a civil dispute and as such can be subject to arbitration. This is where religious courts come into conflict with civil society. As mentioned earlier, religious courts tend to be heavily biased towards men and rules based on religious text are often a discriminatory towards women and leave them a victim of the proceedings. For example it is the man’s right to declare a divorce (Cannon law does not even have divorce), not the women’s; thus condemning the woman to remain entangled irrespective of her wishes.

This became a huge issue in Ontario when their law on arbitration was changed to read that “under subsection 32 (1) it is provided that the parties under arbitration are free to choose the legal framework by which their disputes will be settled so long as the results are not prohibited by law.” This was first seen as an acknowledgment of the existing Jewish and cannon ‘courts’ that had existed in the province for years and provide them a ‘normal’ legal context. It was also seen as an opportunity for Muslims to gain equality by setting up their own Sharia courts under arbitration. It was acknowledged that for some time Catholic and Jewish courts had existed in the province and as such Muslims should be given equal rights. As the law was enforced to deny the Muslims…. Sharia Courts would be discriminatory; however to allow them was seen as ‘anti-western’.

Here I am of two minds. First and strongest, I do not believe ANY religious courts should be allowed; that said IF they are allowed I cannot not see how you could deny them to all… equally … whatever their beliefs.

In practice this could mean that in theory at least, in in a prenuptial agreement, if a couple agreed to arbitrate any marital disputes through a religious court with religious law as the guiding precedent; then it would be impossible for the woman to get a divorce…or receive alimony or custody of her children. This would almost guarantee that the women would not receive a fair ruling.

It came up in our show that women did not have to worry about these religious courts because they would not supplant the Charter rights. Some argue that any ‘unfair or discriminatory’ ruling by the religious court (or any arbitration board) could be appealed/set-aside because of our Charter rights. However, I don’t think that would ultimately help. My initial defence (actual an appeal to authority so I acknowledge it may be valid it is not great skepticism), is that if the answer to this issue was so obvious and simple then why was there such legitimate criticisms from family advocates and woman’s rights groups?

“The National Association of Women and the Law, the Canadian Council of Muslim Women, and the National Organization of Immigrant and Visible Minority Women of Canada argued that under Shariah law, men and women are not treated equally. They argued that women fare far worse in divorce, child custody and inheritance matters under Sharia. For instance, a woman can only inherit half as much as a man can. If a divorced woman remarries, custody of the children from her previous marriage may revert to the children’s father.”[6]

Now, it would appear at that they would be aware of constitutional remedies to these “inequalities” and yet they were actively opposed to the religious courts. However to be a good skeptic, I have other reasons I think a reliance of the charter may fail. A warning, what follows is my own thoughts and research – I am not a constitutional lawyer and thus this may have inaccuracies that render my position moot.

First, who would be challenged with Charter rights violation? When a divorce is issued, like the marriage, it is a kind of contract between to individuals; this is why it’s done in civil court and not criminal court; that the arbitrator is technically only mediating an agreement and not actually party to it. You may accuse the arbitrator as being ‘unequal’ but they are not actually violating ones rights, it’s the parties to arbitration (husband/wife) and thus the woman would be in a weird situation of suing themselves. This is why when the Supreme Court rules on arbitration, it does comment on the arbitrator or arbitration but on whether the item at hand being arbitrated (such as extra billing or the handling of private information) is subject to arbitration in the first place. Thus, much of family disputes are radially seen as arbitrate-able and thus not subject to Charter challenges.

Second, due to the innate voluntary nature of the proceedings, it is difficult (in a legal sense) to challenge an arbitrator’s decision because one felt it was ‘unfair’…the whole point of arbitration it to accept the ruling regardless of the outcome. There would seem to a be a flood of litigation is the ‘benchmark’ for making a constitutional challenge is simple one felt ‘slighted’ by an arbitrator’s decision…a decision one voluntarily and legally agreed to abide by prior to the arbitrator’s decision. Any challenge made could be summarily dismissed as an individual dissatisfied over the arbitrator’s decision not for reasons of discrimination but because they were simply unhappy with the decision of the board. I do acknowledge on this point, that what qualifies as ‘voluntary’ is very debatable however even her, it would seem not a charter challenge but a criminal charge of coercion if one party was forced into religious court.

Thirdly, the ‘religious courts’ are not actual courts. Legally speaking each is essentially an ad hoc arbitration board that HAPPENS to be religious in nature…the term Sharia court, Cannon or Beth Din are legally fictional titles for a board of arbitration. As such, each decision is unique so to apply a charter remedy would be difficult; that even if we accepted that rights were violated you could not make a systematic difference only a ‘case-by-case’ setting-aside of an arbitrator’s decision. This would seem to both violate the premise of arbitration as well as be unfeasible.

Of course, all of this could be side-step is arbitration boards were forced to use principles of Canadian jurisprudence which accepts the equality of all parties regardless of gender and other things we take for granted. After much discussion and lobbying by feminist and family groups the root of the problem was uncovered; that being “religious law” would be the ‘rule of thumb’ for any legal processing…at least with regards to family law. Therefore Ontario amended the law to add that Family arbitration as being arbitration that is “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction”. This put Ontario into line with the other provinces which always had Family Law as a special class of arbitration free from religious contamination. Of course, none of this changed anything for other civil disputes which is why there are ‘religious courts’ in Canada but this falls under the standard arbitration rule that two parties may select whomever they wish to rule of disputes by whatever mechanism they choose.

Sharia Courts are a phantom menace because they never existed. For those wishing equality always had it. The composition of arbitration boards could always have been Qadi (Islamic justices) or Rabbi…and the rule-of-thumb could have been ‘holy text’…and still can be (with the exception of Family law). Thus there was nothing to grant them. On the other hand, there is nothing to fear because arbitration boards have always had ‘complete’ freedom and thus Sharia courts are no more ‘corrosive’ than any other arbitration boards. This seems to me to be a controversy fuelled on one side by a group who wished to assert a cultural independence (perhaps just to ensure control over a community?) and on the other side by a xenophobic types worried that any ‘foreign’ sounding thing regardless of its actual impact (or lack thereof). Religious courts are simply linguistic fancy on a legal fiction.

On a related them, but beyond the scope of this post is the other end of culturally sensitive law – Aboriginal Sentencing circles. Sentencing Circles are an attempt to provide culturally sensitive sentences to Canada’s aboriginal population who have suffered from institutional discrimination in our legal system. A quick look at the level of native incarceration shows how systemic this inequity is. This is quite different from these religious courts and IF there is interest we can do a segment on this issue in a future episode.


[1] Technically Sharia law is a redundant statement; Sharia means (roughly) religious law of Islam.

[4] I use this term to mock those who would report on the impending creation of “eur-arbia”. In no way do I fear, predict or expect the islam-ification of Canada or Europe.

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Accommodationalism

Posted by Don McLenaghen on February 20, 2011

I have been tracking a number of stories in Canada this week relating to accommodation…religious – or if you wish to use a less loaded term cultural – accommodation. At first, I saw these stories as short segments we could use as examples of how dogma, both religious and secular, could take small incidences and blow them out of proportion. However, as I did more research I saw a growing connection between them and that there was a bigger issue being played out.

My first thought, and the one that is raised most often in these debates, is the concept of multiculturalism. I think that is valid issue for discussion and something we will be focusing our skeptic eye on in the near future. However, there was another greater thread being woven by these issues that is the concept of ‘accommodationalism’.

As a Dawkian atheist, I think religion is innately bad for society; however,this can itself be a dogma that has lead others to support people or actions that are harmful to the cause (notable the xenophobic Pat Condell). So, I could not just rule out accommodationalism’ because I think there is a place for it in an open well-functioning socialist society and thus an issue worthy of a greater examination. The stories that inspired this segment were the Sikh kirpan (ceremonial dagger) and the Islamic hijab (head cover) or nijab (face veil). I would have included Mormon Polygamy for more ethnic diversity but we covered this rather extensively in a previous episode although I think it worthy of a re-listen to.

On Feb 9th of this year, the Quebec parliament officially banned the Kirpan from the provincial legislature. This was the culmination of several weeks of controversy over the claimed right of Sikhs to wear the religiously required ceremonial dagger while addressing the legislature. Here is that story.

A group of four Sikhs, representatives of the World Sikh Organization, were scheduled to make a presentation at Quebec’s national assembly on Bill 94. This bill is itself controversial and was being reviewed in an effort to find a reasonable accommodation of the religious and cultural practices of minorities in the Quebec civil society. This delegation of Sikhs were denied entry to the legislature because they refused to remove their kirpans.

According to security services, “This decision was taken by the security services, solely for security reasons”. The guards offered them the option to put the kirpan in a safe place, but the offer was refused and they were denied entry.

Balpreet Singh, a member of the delegation, said “We weren’t allowed to enter because we wear the kirpan, which is a bit ironic because we were here to speak upon the issue of accommodation and we weren’t accommodated”

The Bloc Québécois wasted no time taking up the issue. “It was a well-founded decision [in Quebec] and it is perhaps time that Parliament adopt similar rules”. Conservative MP Navdeep Bains accused the Bloc of seeking to make cheap political gains from the controversy. He said, “I’ve been wearing a kirpan since 2004 and they have never raised this as a cause of concern.”

The Supreme Court ruled unanimously in 2006 that a total ban of the kirpan in a Quebec school violated the Canadian Charter of Rights and Freedoms because it infringed on religious freedoms. However, the court allowed school boards to impose some restrictions in the name of public safety.

Okay, I have been using the term Kirpan a lot but many…maybe most…don’t know what one is. The kirpan is both a defensive weapon and a symbol. Physically it is an instrument of “ahimsa” or non-violence. The principle of ahimsa is to actively prevent violence, not to simply stand by idly whilst violence is being done. To that end, the kirpan is a tool to be used to prevent violence from being done to a defenseless person when all other means to do so have failed.

Symbolically, the kirpan represents the power of truth to cut through untruth. The Reht Maryada, a Sikh religious text, does not specify the length of the Kirpan or the construction of the various parts of the Kirpan or how and where it is to be worn by the devotee.

So, one of the issues raised by Bill 94 was the push by the Parti Quebecois to regulate Kirpans, which as I mentioned they seem to be accomplishing. Some may see this as a strictly civil rights issue while others a security issue. I think one line made by MNA Louise Beaudoin encapsulated THIS issue. They said “It may be a religious choice, but maybe it’s not a choice that everybody should accept everywhere” and therein lies the rub.

One of the reasons people adopt these religious customs is to show their commitment and SACRIFICE for their beliefs and that is their right; however at what point do their choices begin to infringe on my life. First, being around a dangerous weapon may be a decision they are willing to live with but I fail to understand why it is one that I must also accept? There are limitations placed upon me as to where and how I may carry a gun; why should the specter of religion suddenly allow me special privileges.

Secondly, as mentioned, the construction and placement of the kirpan are not strictly speaking ‘written in stone’, so it is possible that the kirpan be, for example a harmless 3 cm in size or encased in resin…maintaining its symbolic meaning while removing it as a physical threat. Lastly, one aspect of these religious practices is the idea of sacrifice. They have chosen this path and accepted the sacrifices that are to be made…so accept the limitations imposed by your decision and don’t try and change the world so there no longer is any sacrifice in the choice…removing the ‘sacrifice’ part…that somehow defeats the purpose doesn’t. In this case I don’t see that any accommodation should be made.

This leads me into a related story, also focused on Bill 94. The heart of this bill would deny government services to those covering their faces. About a year ago, Naïma Atef Amed filed a complaint with the province’s human rights commission because of her experience at a government-funded language class for new immigrants in Montreal. The school insists that to learn French, the instructor must be able to see the face of the student. When Amed refused to take off her veil, she was kicked out of class.

Now, this is another example of someone who should be willing, at least on the surface, to accept the sacrifices her beliefs have imposed upon her; however in this case I am willing to say that an accommodation is appropriate. This case differs in two key ways; first whether or not she wears a nijab will have no effect on my life. The nijab, at least the ones I have seen, are not sharp weapons; so my previous complaint about safety does not seem to apply. Further, there still is the sacrifice aspect in her compliance because it will (assuming the school was not being vindictive) hamper her ability to learn French if the instructor is unable to ‘see her face’. The teacher will do as good a job as they can but there is no necessity, that I can find, for Amed to be forced to remove her nijab. Also, I do not think that wearing a piece of clothing, a catholic habit, the hijab or even a hockey mask, should preclude one from accessing normal civil services. Bill 94 states that any civil service can be denied to anyone who refused to remove their veil; this is secularist (or maybe just xenophobic) dogma. In this case, I think Bill 94 is wrong and that accommodation is appropriate.

That said, there are limits even in this class of complaint. I have only told you part of Amed’s story. She was not actually expelled JUST because she refused to show her face…the school could live with that. However, she insisted that she sit at the back of the room so as to avoid the possible ‘gaze’ of 3 men also in the class. She did at one point agree to lift her veil in private with a female instructor but backed out on this compromise when no assurance could be made that a female instructor would be available for future lessons. She refused to partake in ‘round table’ exercises because she could not tolerate any of the men in her class see her eyes. This attempt to accommodate Amed continued for three months until the disruption in the class to the other students forced the instructor to remove Amed. I think at this point, Amed has failed to understand that accommodation is a two way street.

Having the complete story perhaps we can understand why the decision to expel the niqab-wearing woman was widely supported in Quebec. This includes a few noteworthy people.

Constitutional lawyer Julius Grey, who defended the right of inmates to smoke in prison and the right of Sikh students to wear ceremonial daggers in class said “Accommodation should not lead to separation”.

Yolande Geadah, an Egyptian-born writer, said: “There is no possible compromise with people with such inflexible attitudes.”

Raheel Raza, a Pakistani-born Muslim women’s rights activist, said: “When we come to Canada, we’re not coming to the Islamic Republic of Canada.”

So, to wrap up this thought. We (as most Canadians and most atheist) do not believe cultural groups should be discriminated against but what if the cultural trait that is the cause/object of the discrimination is a religious one? As secularist, we do not think religion should be protected…that i should be treated like any other social “harm” (that is if we regulate guns, we should not treat ‘religious guns’ differently).

Further, as a Dawkian Atheist, I think every effort should be made to cure society of religion…but what happens when those efforts are co-opted by racist (such as Draw Mohamed day?). I think I remain rationally committed to my form of anti-spiritualism while denying support for hate groups provided I use the scientific method guard against that new form of secular dogma. I will discuss this more in an upcoming blog about a new bill being debated requiring visual confirmation of voters.

What are your thoughts?

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Best little Whore House….pt 2

Posted by Don McLenaghen on October 20, 2010

In part 1, we discussed the legality around the court challenge and took a sceptical look at the court ruling. Now we will look at the issue itself – should brothels be legalized.

Now there are two questions to be asked. IF prostitution is innately wrong (be it for moral, gender equality or other reasons) then the law should outlaw prostitution (a position I oppose but will save that argument for another day). It seems to be the current ‘will of the people’ see prostitution as just another trade/occupation; that it is not innately wrong – as such it is currently legal in Canada. Those who disagree with this are welcome to change the minds of Canadians (with rational empirical evidence of course) but this is a straw man argument against brothels themselves.

As a society, we accept prostitution as a valid and legal profession; that said we can agree that prostitution as currently practiced can lead to situation where workers are subjugated to violence, theft and coercion. The second question then is: how can we make the sex-trade safer for ‘participants’ (workers and clients) and ‘law abiding’? The striking down of these laws was a step in that direction.

As long as prostitution is legal (and even if it were not) there will be brothels…they are convenient for the client and desired among the workers (re: testimony). So, under which condition – legal vs. illegal – are brothels more likely to be positive environments or negative environment?

If there are illegal, there is NO opportunity for civil officials – be it law enforcement, medical or social – to interact with the workers to ensure their safety or security.

If they are illegal there are, by definition, run by criminals. The criminal element is by its nature more likely to abuse it workers…it is also likely to be involved in other ‘subsidiary’ illegal activities such as drug dealing. This is dangerous not only to the workers who will be more likely forced into conditions of dependency but also the harm to the community.

If they are illegal, the workers are discouraged from working in ‘safe’ neighbourhoods and self-incriminate if they contact authorities to report abuses. The communication law, also forces workers to work in isolates unsafe environments.

IF they are legal (AND regulated), civic officials can ensure safe work environments, provide outreach for those suffering from addiction and ensure the business operates both within the law and also pays its share of taxes.

IF they are legal, those operating the businesses will be business men (although I personal see the capitalism as a criminal, current society does not). They will have, as all legal entrepreneurs, an interest to uphold to the law, ensure they deal with their employees in a legal and fair way and provide an amiable environment for their cliental. They will be active positive members of the community, paying taxes and protecting their investments.

IF they are legal, those working in the brothels can call upon the resources of the state for protection from abuse, to help ensure a safe and respectful work environment and not worry if they require assistance from the authorities they will themselves be criminalized.

Now, there other issues involved in the sex trade – notable child prostitution and human trafficking (sex slaves). These issues will not be exacerbated but the legalization of brothels; if anything they will be hampered. If a brothel employs ‘honest’ prostitutes, they will be more likely to ‘whistle blow’ on brothels where illegal activity (like child or slave labour) is occurring. Making brothels legal will not make child-sex legal nor will it encourage human trafficking. In fact it will decrease the available avenues these activities will be able to operate as most sex work becomes above-board.

Fair dinkum, I am not saying that legalizing brothels will end violence to prostitutes…magically illuminate the criminal pimp…stop human trafficking or bring to an end child prostitution. What I am saying is by making this, like prostitution, legitimate you will shed a light on the business and drives out most of the negative elements…make it more likely that workers will get counselling for addiction and medical attention. There will be a selective pressure promoting safe brothels because the vast majority of their clients also want an safe and clean environment.

Ultimately, those who claim they worry about the safety of sex works are against these laws being struck down seem contradictory. They believe even if we legalize brothels some will still remain ‘underground’ and some will remain in the hands of violent and/or criminal pimps. Even if that were true, all I can say is I don’t understand how limiting the number of legit venues for prostitutes will make them safer? How is keeping brothels, ALL brothels in the hands of criminal gangs helping to make them safer? No, these laws needed to be struck down and a reasonable set of regulations put in their place. 

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Best little Whorehouse….pt 1

Posted by Don McLenaghen on October 20, 2010

Recently the Ontario Supreme Court struck down a law that criminalized prostitution…well actual the operation of brothels.

The applicants (the people challenging the law) were arguing the several laws violated their charter rights. The respondent (the government wanting to uphold the law) argued that it could limit rights based on Section 1 of the charter which states:

“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The court, in testing to see if the limitation is valid used what is called the “Oakes test”[1] (named after the court case that first stated this test). The first test holds that there must be a “pressing and substantial objective”, for example the desire to protect minorities from hate speech. IF the court agrees there is a suitable objective, the crown must then show proportionality.

Proportionality is actual three things; first the restriction in question must be related to achieving the objective. For example, preventing someone from driving because they shoplifter – there is no rational connection between the two. Second it must be as minimal as possible. For example, a rehabilitated (ie lawfully released from prison) child-sex offender could be prohibited from going into any public part, but that is a large limitation. A more minimal limitation would be prohibited from school areas; this achieved the laws objective while not being too onerous on the charter. Lastly, it must be proportional to the objective. For example, the objective of stopping Jaywalking (a minor offence) should have an equally minor limitation on rights; whereas stopping hate speech (a major offence) could support a greater limitation on rights.

Okay, now that you have a brief understanding of the Charter, let’s just say the court did not believe these laws deserved Sec. 1 protection and thus struck them down. The laws in question are:

1)   Anyone who is keeps a common bawdy-house (a place that is kept for the purpose of prostitution or the practice of acts of indecency) is guilty of an indictable offence. This extends to the “inmates” (ie workers), landlords and anyone found “without lawful excuse”…who are liable to summery conviction.

2)   Everyone who live wholly or in part of the avails of prostitution of another person

3)   Every person who, in a public place or in any place open to public view…attempts to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute…is punishable by a summary conviction.

These laws were, in a way, quite weird. I could understand if you we left with the impression prostitution itself was illegal in Canada…yet is it not! Prostitution itself is legal in Canada….they have just written the law so that you just can’t ACTUALLY practice it…well ‘above board’. Largely what is at the heart of this matter is brothels (bawdy-house )…should they be legal and above board or remain illegal and in the hands of criminals? Sorry, that loaded ways to state that….Lets rephrase it – should the law accept the legal existence of brothels?

Let’s take our sceptical minds and examine what the evidence presented to the courts.

In evidence, a number of former and current ‘workers’ stated that it was their experience that working ‘indoors’ was significantly safer that walking the streets. Most stated that they entered into the line of work without coercion…beyond the capitalist system…ie they needed the money. The State offered counter evidence but it focused mostly on ‘abusive pimps’ who did their violence both indoors and on the street.

This is what a sceptic would call anecdotal evidence…so not much weight either way…

Law enforcement witnesses stated that most of the harm centered around drug/alcohol abuse and organized crime. They saw the ‘workers’ as victims, both of the ‘pimps’ but also the johns; noting most prostitutes are poor while the johns come from “all walks of life”.  A re-occurring theme in the respondent’s (and most critiques of protection) submissions is the view sex trade workers are victims…of others, circumstance and substance addiction.

Law enforcement witnesses also expressed frustration at attempting to enforce these laws. In 2008 2377 charges were made for ‘brothels’ but only 131 convictions.

Under cross-examination, they all stated that streets were worse for violence then indoors. That indoor location could be set up to reduce the chances and level of violence.

Again, largely anecdotal, but it did collaborate the ‘claim’ that indoor work are saver than the street walking.

I ignored the convictions data, regardless whether a law is easily enforceable does not make it a good law. It’s hard to fly, does that make flight bad?

The Fraser Report in 1985 held that prostitutes should be allowed to conduct their business, in private, however they choose…including the disposition of their ‘fees for service’. They also stated that although there is a strong perception of a connection between prostitution and drug abuse, the evidence shows that actually only small part of the business and not typical. It also reiterated the fact street walking is far more dangerous.

They also reported, after extensive cross-country consultations with the public and no consensus on the issue.

The Fraser Report did recommend the removal of laws constraining ‘non-nuisance’ street solicitation; that laws against ‘living on the avail of prostitution’ be reworked so as to criminal abusive behaviour of pimps and not the actual financial relationship and to allow prostitutes to legally work ‘from home’.

In 1995 the Calgary/Winnipeg study reported that due to the criminalization of ‘communicating for the purposed of prostitution’, workers were forces to work in more remote and isolated area making them more vulnerable to violence. The laws do not suppress prostitution but simply drive it underground.

So, the research into the issue seems to point to the striking down of the laws in question…but what about ‘experimental evidence’. This can be found by looking at the effects in other countries.

Legalization in Holland, although debated, according to reports commissioned by the Dutch government, there has been moderate success in improving the working conditions of prostitutes; including, notably, a significant reduction of STDs.

In 2003 New Zealand legalized and regulated brothels….the result being significant reduction of violence, coercion  and theft in the ‘in-house’ workers…street workers still suffered though.

Germany passed its law in 2002 with the explicit purpose of removing prostitution as a “breeding ground for crime”

Nevada has several regulations to help protect women such as negotiating prices upfront with management listening in to ensure the proper behaviour of the client, the fee is paid in advance with the worker giving a opportunity to express reservations away from the client, each room has a panic button, and there is not ‘quick’ exit for johns and clients are not allowed to be ‘anonymous’ discouraging them doing harm and ensuring if they do they will be apprehended and prosecuted.

So, the rational trend seems to be getting sex trade works off the street reduces their risks…including violence, theft and coercion.

Bucking the trend, Sweden criminalized the buying of sex and pimping. “Act on the violence against Women” 1999. To understand why Sweden has gone against the grain we only need look at the acts name. It is not an ‘anti-prostitution’ act but an act intended to ‘defend women’… It seems to ignore the fact that a significant number of sex-trade workers are man.

Straw man – refuted a position by substituting a superficially similar yet unequivalent proposition and refuting it, without ever having actually refuted the original position.

There is this constant assertion that sex trade workers are ALWAYS victims (even when they are voluntary participants), that they need someone (usually the male minister of state) to protect them from other bad men…the case at hand was not prostitution itself but brothels. This is a straw man because it ignores the argument ‘are prostitutes safer in legal or illegal brothels’ and instead agues prostitution is innately wrong therefore prostitutes are safer in illegal brothels…I am stunned at the illogical.

“I think that the criminalization of everything around prostitution, except prostitution itself, means that sex workers are not positioned … to seek assistance should their lives be at risk.” Gender studies prof Darlene Jushka, U of R[2]

This argument strikes me as incredibly sexist and paternalistic. I know it is not a very skeptic critique but it’s not a very rational argument. With regards to the laws at hand, it is also irrelevant. IF you accept that prostitution is innately harmful, then you aim should not be to make brothels illegal but make prostitution itself illegal.

So that is how the law worked and the evidence the judges used to arrive at a decision that seems consistent with the skeptic mind. You can check out their full decision here[3].

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