Saturday, December 21, 2013

How Will This Work? or Did the Supreme Court Pull a Fast One?

Yesterday the Supreme Court of Canada found (ruling is here) that a number of provisions criminalizing aspects of prostitution trade (apparently selling sex for money itself isn't illegal in Canada) were contrary to provisions in the Canadian Charter of Rights and Freedoms.  Instead of immediately declaring the offending provisions illegal the court gave parliament a year to enact new provisions before the current provisions will become inactive.

I can't help but wonder if suspending the declaration that these provisions are unconstitutional for a year isn't something of a fiction?  Are these provisions not basically already dead?

Even if the laws are still theoretically in force has the highest court in the land not just provided a perfect defense for anyone for anyone charged under these rules?  Maybe more to the point, would a prosecutor ever consider bringing charges once the Supreme Court of Canada guaranteed there to be no chance of a successful conviction?

And maybe this part is a stretch, but are the police going to be inclined to even arrest people using these provisions if the chance of prosecution is slim?  Might many police forces decide to use their resources on more promising endeavours until this matter has been clarified with either new law or a clear lapsing of these provisions?

And as laws tend not to apply retroactively, might the period of time from yesterday until a new law is passed or the provisions clearly lapse be something of a Wild West/Renaissance for prostitution in Canada?

I'd be really curious to know if there's something about this ruling that I've missed or if some part of my analysis is way off because as it is I can't yesterday's ruling isn't much more significant than has been previously suggested.

And I should also note that it would seem to me that a similar situation might arise every time the Supreme Court finds a provision unconstitutional but suspends the implementation of their order.  Is the suggestion that the law is still in effect (despite zero chance of a successful conviction) so powerful to continue to discourage the behaviour in question, whatever that behaviour might be, or is the delay really as much of a fiction as it seems?

No comments: