I am quite late on this, but I have only recently come across a post by Grégoire Webber on the UK Constitutional Law blog, arguing that the Supreme Court’s reasoning in Canada (Attorney General) v. Bedford, 2013 SCC 72, the decision striking down various prostitution-related provisions of the Criminal Code is based on flawed inferences from the fact that these provisions did not criminalize prostitution itself (i.e. the sale of sex). Prof. Webber argues that
[t]he judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law.
In prof. Webber’s view, this “unstated premise” is mistaken. That selling sex is not legally prohibited does not make it morally permitted. The Supreme Court compared the Criminal Code’s prohibitions on prostitution-related activities, which had the effect of making sex work more dangerous than it would have been in their absence, to a prohibition on wearing a helmet while riding a bicycle. The trouble, prof. Webbers contends, is that
[t]he assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.
If prostitution ―unlike riding a bicycle ― is morally wrong, then it is permissible for the legislature to “frustrate [it] by indirect means,” such as the criminalization of various activities surrounding it, which is exactly what the provisions invalidated in Bedford did.
With respect, I think that this argument misses the point. The issue in Bedford is not whether Parliament ought to be able to frustrate the commission of moral wrongs by indirect means, but whether the means it had chosen were permissible.
Take an example offered by prof. Webber ― say adultery ― and assume that a legislature wants to frustrate its commission without criminalizing it. (For the sake of convenience, make it a legislature in a unitary state, unencumbered by the division of powers under the Canadian constitution, albeit subject to a bill of rights exactly like the Canadian Charter of Rights and Freedoms). The legislature could do several things. It could fund couple-therapy programmes that would (hopefully) make for happier marriages and less adultery. It could require anti-adultery education in schools. It could make a public promise of fidelity a requirement for entering into a civil marriage. It could implement rules punishing adulterous spouses in the event of a divorce, for example depriving them of property or support entitlements they would otherwise obtain. It could also amend the criminal law to provide that the killing of an adulterous spouse is not to be treated as a murder, but as justified self-defence.
The first two of these options would obviously be legally permitted, and I think there is nothing wrong with them from a broader perspective of political morality (though mandatory anti-adultery education sounds a bit creepy). They may or may not be effective, but not legally or morally problematic. A mandatory promise of fidelity may be constitutionally problematic as a violation of freedom of conscience, as I have argued here, insofar as there is disagreement in society over the meaning of marriage and the value (or interpretation) of fidelity. It would also, I think, be morally disturbing, because overbearingly paternalistic. Family law rules punishing adulterous spouses would probably not be unconstitutional, unless it is shown that their application punishes one gender more than the other, in breach of the constitutional guarantee of equality. Morally, such rules would be troubling, not least because of the perverse incentives and acrimony they would generate; even assuming that their purpose would be worthwhile, they could easily do more harm than good. Finally, I think it is quite clear that exempting the killers of adulterers from the law of murder would be both immoral and unconstitutional, no matter how effective such a measure might be at “frustrating” adultery. Subjecting adulterers, no matter how badly we think of them, to an increased risk of death would be a violation of the rights to life and to security of the person, and an entirely disproportionate one.
Indeed, so would be a rule allowing police officers to shoot persons whom they caught in the process of committing actual crimes in situations where doing so is not necessary to preserve anyone’s life or safety. That the activity a legislature seeks to frustrate is a morally ― or even legally ― prohibited one is simply not a sufficient justification for depriving those involved in the activity of certain rights.
Thus, even assuming that sex work is morally wrong ― which I do not believe (and which, as I read his post, prof. Webber might not believe either) ― Parliament is not justified in seeking to frustrate it by any means. The means it chooses, just like the means it chooses to prevent the commission of actual crimes, must still comply with the Charter, and in particular with the security of the person guarantee that was invoked in Bedford.
H/T: Paul Daly