(I posted this at Kate’s but it seems to be hung in moderation.)
The prior state of the law was that prostitution was legal but associated activities were not. This meant that smart, pretty, girls could engage in a perfectly legal business and did. Dumb, addicted, ugly or simply desperate girls were are the mercy of the streets, pimps and cops.
By striking down the laws surrounding prostitution as disproportionate to the “evil” being prevented, the Supreme Court was actually noticing the effect of the criminalization of what was, at its core, a legal activity.
Now, if you do not like the exchange of sex for money you can lobby the Cons to make prostitution itself illegal. This will have two effects: it will subject the less successful prostitutes to greater risk and more harassment and it will, to a degree, raise prices across the board. It will not, of course, eliminate or, in all likelihood, even significantly reduce the incidence of women becoming prostitutes.
If the Cons are unwilling to make prostitution illegal – and I can’t imagine why they would want to as there are not a lot of votes in it – the alternatives are to go for no legal regime at all or to actually consider what law might address the evils so eloquently stated by the moralists above.
“Living off the avails” is a silly way to attempt to curtail pimping. A more sensible solution would be to create an offence which makes it illegal to coerce people – and it is not just women – into the sex trade. Make it a serious offence that could be added to other criminal charges.
The communications offence is just dumb in the context of a legal enterprise and will stay dumb no matter how it is tweaked.
The “brothel” offence is more a matter of municipal regulation than a concern of the Criminal Law. It should not be impossible to restrict locations in a discriminatory way. Think neighbourhood pub regulations.
The happy thought that somehow girls will line up to be licensed, examined and taxed is more than a little crazy. However, it might be possible to require identification and medical certification in licensed brothels. But, realistically, most of the girls will continue to work in the legal, unregulated, sector.
The illusions of using the law to regulate sexuality is a hang over from the moralizers of the 19th century. Both in England and in the United States the use of the law for “progressive” ends lead to the attempt to make prostitution, gambling, drugs, pornography and alcohol illegal. In every case, the only thing these laws accomplished to raise the prices to the point where organized crime became focussed on these areas.
The Suppression of Vice and the Promotion of Virtue is the motto of the Saudi religious police and do gooders everywhere. It never works and almost always creates misery, tyranny and crime. The SCC has made the right decision, now lets see if the Cons are smart enough to leave well enough alone.