“Law and justice are not always the same. When they aren't, destroying the law may be the first step toward changing it.” – Gloria Steinem
Not all that is immoral should be illegal. Behaviour deemed unacceptable by traditionalists, or even by the majority, is routinely the subject of fodder for the “There Ought To Be A Law” crowd, simply because it offends their delicate sensibilities. Rarely is there a debate about the consequences to maintaining the charade of the War on (insert vice here) and the effects of said war, which most often are in complete contradiction to the stated goals.
As a part of its Tough on Crime agenda, the Conservative government quietly amended the Criminal Code of Canada over the summer. Justice Minister Rob Nicholson said it was to target gangs.
“We’ve got to close these loopholes on organized crime,” Nicholson stated at a Montreal news conference last month. What he was referring to weren’t loopholes so much as they were sentences the government believed were too lenient.
The amendments reclassify the following activities as “serious offences,” which will lead to more severe punishments of five years or more per offence:
• Keeping a common gaming or betting house.
• Betting, pool-selling and bookmaking.
• Committing offences in relation to lotteries and games of chance.
• Cheating while playing a game or in holding the stakes for a game or in betting.
• Keeping a common bawdy-house.
• Various offences in the Controlled Drugs and Substances Act relating to the trafficking, importing, exporting or production of certain drugs. (source: CBC)
Upon closer inspection, the common thread with these activities is clear: Gambling, prostitution and drug use are all widely considered to be vices. Conservatives, many of whom claim to have libertarian tendencies, tend to be, in theory, opposed to the incursion of government into the private lives of citizens. But when citizens, in the privacy of their own homes, social clubs or brothels, take part in activities that go against the supposed teachings of Christ, all bets are off.
There has been an uproar over plans by both Loto Québec and the Ontario Lottery and Gaming Corporation to introduce online casinos. Anti-gambling advocates say that a ban on such outlets needs to be maintained and it is outrageous that governments are getting into the business. There is little acknowledgement that, much like clandestine card games, drug use and prostitution, online casinos not only exist, but are thriving on the margins of North American society.
The largest players in internet gaming are located outside of the reach of Canadian regulators, in exotic locations like Bermuda, The Bahamas and the south shore Mohawk territory of Kahnawake. Continuing to prohibit online casinos does nothing to eliminate these sites nor does it render them inaccessible to addicts – unless they struggle with the complexities of Google. It simply continues to feed an unregulated market while robbing government of much-needed tax revenue and the power to spot and help addicts.
It is just as absurd to crack down on card games. The addition of Texas Hold ’em to the Casino de Montréal left underground gamblers with few reasons to avoid the relatively safe enclave of sin on Île Notre-Dame in favour of underworld gambling enclaves. Those who choose the latter, do so at their own peril and without risk to the general population.
The Harper government’s decision to impose stiffer penalties on those who gamble outside of government facilities suggests that this activity is somehow on the rise or becoming a problem for Canadians; neither is true and the government has produced no evidence to justify the Criminal Code amendments.
If card sharks were approaching ordinary citizens and demanding that they remortgage their homes in order to place bets, a different approach by law enforcement could have been understandable.
Of course, gambling can be a destructive activity that can financially ruin a person and his family. But gambling in itself in not inherently evil (nor is any personal vice evil, for that matter), despite what religious fundamentalists may tell you. The vast majority of people can take part in games of chance responsibly. For those who can not, in an ideal world, State-sponsored addiction and recovery programs would be made available, financed by proceeds from the very same activities that contributed to the problem.
Debates on vice often come down to a burning desire to control outlaws as proof of good leadership. Every successive government at all levels seems to have the solutions to crime. These solutions are, more often than not, variations on the same theme: Prohibition leading to elimination. The result is always the same and completely predictable: Failure. \
There is no better example of the failures of prohibitive policies than with prostitution, considered to be the world’s oldest profession. With this new crackdown on illicit brothels, the Conservative government is attempting to do what most governments around the world have attempted for thousands of years. They too will fail miserably.
Again, the consequences of prostitution are limited to those who choose to take part. Arguments pointing to a degradation of the moral fabric of society don’t hold up, given that it is hardly an emerging industry. The legalization of paid sex is not to be confused with an acceptance of human trafficking; the two are most often mutually exclusive. There are separate laws that already forbid illegal immigration, kidnapping, forcible confinement, blackmail, rape and other unfortunate acts that result from an underground flesh trade continuing to flourish outside of the purview of government.
As Pierre Elliott Trudeau once famously said, “there’s no place for the State in the bedrooms of the nation.” A cash-for-sex transaction between two (or even three) consenting adults may not be what is widely accepted as healthy or moral behaviour. The question remains, why is it the State’s role to police sexuality and to arbitrarily determine what is right and what is wrong, given that there is hardly a consensus on that question when it comes to prostitution.
No father wants to see his daughter grow up to become a hooker; there is no disputing that. It’s a dirty job, but, unfortunately, someone will always do it because there has always been and will always be a demand for such services. The question then becomes how best to police this industry to ensure the safety of both sex workers and clients alike. The answer is undoubtedly a decriminalization of these transactions and a tight regulation of the industry, with licensed brothels and red-light districts. Women who, for whatever reason, choose to sell their bodies can do so in a safer, controlled environment, under the watchful eye of security forces instead of pimps. They can keep their earnings instead of handing much of it over to gangsters who currently are the regulatory authority.
What Tough on Crime proponents don’t understand is that organized crime wants prohibition. Without it, they face the prospect of competing in the legitimate business community, where they are more likely to be lost in a sea of mediocrity than to rise to the top, where they would benefit from a comparable lifestyle.
The War on Drugs, like the prohibition of alcohol in 1920’s America, is the modern-day Noble Experiment. As is the case with the other vices, there is a failure among leaders to acknowledge the presence of drugs and the permanence of the industry. Denial and blind aggression are what makeup current drug policies. Western governments spend billions in vain to enforce drug laws, while cartels in Mexico and across South America terrorize civilians in response to the U.S.-led moral crusade. It has to stop.
Prohibition doesn’t work and those who impose it on their populations are simply repeating the mistakes of their predecessors. History has taught us that human beings are resilient creatures who adapt intelligently to changing landscapes. This has been the case with drug users, dealers, distributors and producers. Every new law or crackdown has been met with new techniques to circumvent them. When it comes to the drug industry, the only law that matters is that of supply and demand.
The decriminalization of marijuana in this country is inevitable; there is overwhelming evidence that demonstrates that it is far less hazardous than cigarettes or alcohol. It is so commonplace that continuing to criminalize as many as a third of Canadians who have tried pot is in itself becoming immoral as a prohibition. The question of legalizing harder drugs, like cocaine or heroin, is a more contentious debate.
These substances can wreak havoc on addicts and every effort should be made to ensure that, in the long-term, they are treated for their illnesses and, in the short-term, they are provided with a clean, safe environment in which to consume without risk of contracting diseases like HIV or Hepatitis C through dirty needles.
Safe Injection Facilities (SIF) like Vancouver’s InSite have been associated with a 30 per cent rise in the use of detoxification services; the Quebec government has scrapped plans to model facilities after InSite. The tough love approach has not worked and a new direction is needed; one that involves acceptance and compassion.
In Baltimore, Maryland, a police official took the city’s worsening drug problem into his own hands. Major Howard “Bunny” Colvin created what was essentially a red-light district for drugs: A few square blocks of abandoned row houses where dealers and users could interact in the open, while being supervised by both police and healthcare workers. It was a successful experiment that drastically reduced both crime and drug use; the violent battle for territory ended with the emergence of an open marketplace and social services personnel could more easily treat addicts because finding them was about as easy as shooting fish in a barrel. Some of the only people in Baltimore who didn’t see the benefits of the SIF dubbed “Hamsterdam” were politicians who had lost control and could not exert their power through law. Colvin was relieved of his command and Hamsterdam was dismantled, addicts were incarcerated without receiving treatment.
The preceding scenario was a brilliant work of fiction from the critically-acclaimed HBO television series, The Wire. This storyline in particular fuelled a brief debate in media on the virtues of SIFs and the futility of the war on drugs.
“You can't even call this shit a war,” said Detective Ellis Carver. “Wars end.”
If the goals of prohibiting vice were the elimination of vice, then by all accounts, the War has been a catastrophic failure. Gone are the days when the Church would set policy; it is time for the emergence of science and reason in the debate surrounding gambling, prostitution and drugs.
The tone from leaders must shift from one that foolishly assumes these three evils can somehow be eradicated, despite overwhelming evidence throughout history to the contrary, to one that accepts that human beings are flawed, and realizing that those who cope with substance abuse or who are otherwise in distress require assistance to change their behaviour, not punishment.
By Minister Nicholson’s own admission, gambling, prostitution and drugs are the “signature activities” of organized crime. The first step in recovery is recognizing that you have a problem. Next, comes action. If there is a steadfast demand for these activities, the answer is not heavier regulation, but competition. As is the case with the sale of alcohol at state-controlled agencies like the Société des alcools du Québecor the Liquor Control Board of Ontario, or the hosting of card games at the Casino, the public will overwhelming choose a safe, regulated environment over one controlled by the criminal underworld. There is a reason why you couldn’t find a gallon of bathtub rum if you tried; the legal option is safer.
When thinking of new legislation, one ought not to think in terms of morality. One’s man’s right is another man’s wrong. Instead, lawmakers must respect the rights of the individual as paramount. Although justice is most often expressed through the law, the law is not always just. And there is no justice in continuing to incarcerate individuals who may be in need of assistance and who, if they endanger anyone at all, endanger only themselves.