Thursday, October 15, 2009

Why turn prostitutes into criminals? by David Asper

With our prostitution laws being challenged in the courts, moral questions about the world's oldest profession are being debated in Canada.

And not for the first time.

In the mid 1980s, the Special Committee on Pornography and Prostitution -- known as the Fraser Committee -- extensively studied Canada's prostitution laws. In 1985, it recommended, among other things, that street-prostitution crimes be made tougher, but that prostitutes be allowed to ply their trade in safer, private "bawdy houses" (i. e., brothels) with certain limitations.

Parliament did the first part -- enacting harsher laws regarding street prostitution, but refused to strike down the Criminal Code's bawdy-house prohibitions. As a result, prostitutes continue to provide sex for cash, which is technically legal -- but they break the law when they solicit on the street or partake in the operation of a brothel.

In 1990, a legal challenge to the law made its way to the Supreme Court of Canada. In a case known as the Reference under Section 193 and 195, the court upheld both the street-solicitation and bawdy-house laws. The majority opinion reasoned that the social nuisance occasioned by prostitutes seeking out customers was sufficient reason to justify criminal sanction. It went on to say that the public act of solicitation was degrading, and ought to be out of public view of young women who might be enticed by the supposed allure of the life of a prostitute.

Further, the court held that the crime of keeping a common bawdy house was not an excessive infringement on life, liberty or security of the person because any such deprivation was in accordance with "fundamental justice."

The Supreme Court decision effectively passed the ball back to Parliament on the larger policy issue. Since then, countless prostitutes (and their customers) have been charged and convicted.

In a twist on the argument first made two decades ago, the new Charter challenge being made in Ontario claims that harm is befalling prostitutes because they have been forced underground into a world where they are being victimized by violence. The argument is that their technically legal trade, prostitution, has been turned into a high-risk activity because the Criminal Code prevents them from performing that activity in a safe, private manner. As Exhibit A, they point to the sex trade workers across Canada who have been beaten, kidnapped or are otherwise "missing."

Many argue that prostitution is a symptom of hopelessness on the part of people who are forced into the business by poverty, addiction or de facto enslavement by predatory pimps. Others say that in most cases being a prostitute is a voluntary choice. Regardless of which view is correct, the fact is that prostitution has been around for a long time. Whatever is motivating a prostitute to trade sex for money, does it seem fair to make him or her a criminal for trying to do their business?

Until Parliament resolves the question about whether prostitution itself should be legal or illegal, we are going to be left with a void between the law and common sense, with ongoing challenges to the validity of our criminal laws.

The Fraser Committee did valuable work and provided very sensible recommendations to Parliament. The Harper government ought to dust off the books and have another look.

David Asper is Assistant Professor of Law at the University of Manitoba.

*Reprinted with permission from David Asper. Original article posted on October 8, 2009 on The National Post Full Comment blog:

Wednesday, October 14, 2009

Did Jew See That?

The other day I was reading about the recapitalization of Canwest Global Communications in Yahoo news. I skimmed the comments that other people were making and was shocked to see a number of overt anti-Semitic remarks, such as: "That's what Jews do. They borrow from other people and don't pay back."

It reminded me of a social occasion several years ago when I was having dinner with my mother and we had invited a friend of hers over. This woman, whom I will call Cassandra, talked at length about how the Jews were "taking over" the Queensway Carleton Hospital in my hometown of Ottawa (or Nepean, actually). She proceeded to declare that the Jews were trying to run the world, starting with the international banking system. That's because they were so smart, ambitious and greedy. That's not the first time that I had heard that or even the conspiracy theory that Jews were behind 9/11.

Normally, I try to abide by the old maxim, don't talk politics, sex or religion over Sunday dinner (My brother would disagree because I ruined his anniversary one year by coaxing him into a rabid political debate over cocktails. My justification is that that was not a Sunday.) And I also attempt to be fair. I was talking to an octogenarian. She grew up in a different time and place, rife with prejudice. But in this case I made an exception. I strongly opposed what our guest said and I continue to do so when I hear anybody disparaging Jews or any other ethnic group.

Just imagine substituting the word “blacks” or “women” – “Blacks live off welfare because they're too lazy to work.” “Women run up their credit cards and expect their husbands to pay them off.” When we see gross stereotypes like that, we flinch, as we should.

If people want to talk about Canwest filing for bankruptcy protection, fine. Stick to the topic! No need for ad hominem attacks. The fact that the owners are Jewish has nothing to do with anything.

I've never been big on Internet regulation, partly because I'm philosophically opposed and largely because it's so impractical and unenforceable. But there is a way to allow the Internet to self regulate: when you read an anti-Semitic comment, respond back. Be polite, be firm and be clear that it never was and never will be acceptable, online or off.

Sunday, October 04, 2009

Capitalism by Michael Moore -- Random Thoughts

Just came back from Capitalism and thoroughly enjoyed it, as I do all of Michael Moore's work, but like most of his movies, Moore skips over important details or leaves me with just as many questions as answers at the end of his performance.

Capitalism is a well-justified attack on Reaganomics, largely blaming it for the economic fallout of 2008. Prior to Reagan's election, the capitalistic system appeared to work well to young Michael when his father was fully employed by GM and his mother, like many women of that era, had the option to stay at home and raise children instead of being forced to work outside of the house as well as inside, which is the current trend. The 1950s and 60s appeared blissful; there was much prosperity and people were happy, according to Moore. But were they really or was this a Leave It to Beaver analysis? What about poor women who always had to work or inner-city blacks and Latinos? The inequality and poverty that are hallmarks of the capitalist system were not even mentioned by our baseball-capped champion for labor in the beginning of the movie.

What was hammered home were tragic images of people being forcibly evicted from their houses by the police; stats about the number of personal bankruptcies; greedy lenders who misled people into thinking that they had money in their home that they could borrow but forgot to inform them that when they went to repay it, it would be at double the interest rate: and lengthy explanations about the Wall Street gambling game that resulted in your pension fund being mismanaged or suddenly transported to another planet. How did we go from abundance to foreclosures? Reaganomics, which was based on tax cuts for the wealthy. And even more dangerous was the fact that Ron Reagan invited into his Treasury Cabinet CEOs from companies like Goldman Sachs, so that the line between government and private industry was forever blurred. How could AIG or Sachs ever act in the public interest when the whole mandate of a corporation is to make a profit at any cost?

At the end of Capitalism, Michael Moore shows footage of FDR where he advocated a second Bill of Rights that would have guaranteed all Americans the right to a decent livable wage, a proper education, universal healthcare, and protection for small business owners from monopolies as well as individualinsurance for those who became disabled, unemployed or reached retirement age. All laudable goals that seem more elusive than ever.

Yet certain nagging questions weren't answered in Capitalism. For example, we see a great celebration at the election of Barack Obama but no real discussion as to whether he removed all of the Wall Street financiers from the Treasury Department. Newsflash: he didn't. Look at his chief of staff, Rahm Emanuel, who made millions of dollars in investment banking, and was previously a director at Freddie Mac, a government created program to help people obtain loans for their homes. In passing, Moore says that Bill Clinton didn't eliminate the new marriage between Wall Street and the Federal Treasury either. No One Left to Lie to (as Christopher Hitchens calls him) Bill retained a similar Treasury Department to that of George Bush senior. We see outrage and indignation at the passage of George Bush's bailout for Wall Street but there is no serious analysis as to what would have happened had that Bill not passed. Would the financial sector have collapsed? Global economic meltdown could have resulted if we had failed to take some sort of action. Would Moore have supported a provisional bailout (e.g., the money could have been a loan, and my lips -- no bonuses!)?

What are Moore's real feelings about Obama? I remember seeing him on Larry King live early on in the campaign and he didn't support our current Prez. Has he since changed his tune? How partisan is that when capitalism is embraced by both major political parties as well emphatically by Libertarians?

And Moore is big on anecdotes as opposed to larger, more representative figures. He claimed that pilots flying for American Eagle made as little as $20,000 a year or less. Is that true? I don't want to fly in a plane with a pilot who can hardly afford his own car! Wikipedia says that it depends on the airline, aircraft, position and seniority, and that a first officer in a medium aircraft may only earn $30 to $40,000 a year but a more experienced captain doing a transatlantic flight on an Airbus or Boeing could earn $80 to $90,000 a year. I would have liked to have seen a breakdown. Give us the mean and median or mode average salary of the pilots at United, Continental or American Airlines rather than interviewing two or three beginning flyers at the least well paid airline.

Lastly, Michael Moore suggests that we abandon capitalism in favor of democracy but that's like saying I'm going to skip breakfast because the orchids are blooming outside. They're not related. Democracy is not an economic system. It's a political philosophy that requires representation: government by the people, at least theoretically. The economic system that rivals capitalism would be socialism and that is really what Moore supports. It would have been more honest to have stated his preference for democratic socialism, which is what most European nations practice.

Did these omissions seriously flaw the movie? No. Moore has always had a keen eye for social analysis. Something is fatally wrong with the economic system and we all realized that last year. Where we go from here is anybody's guess.