The Bedford decision: For liberty not license

Par Beryl Wajsman le 30 mars 2012


The Ontario Court of Appeal decision in the Bedford case striking down that province’s anti-brothel laws should be celebrated for reasons far removed from the salacious. The decision, if properly interpreted nationally, would open the door for liberty not license. It is in that sense that it is important.

As a point of information, let us remember that the practices inside brothels are not illegal in Canada. The “oldest” profession cannot be prosecuted merely for the exchange of money for services. What was illegal in Ontario was the practice of this profession indoors. What is illegal nationally is solicitation in the public and living off the avails.

What changes with this decision, besides the extra protection afforded to sex trade workers since they can now hire bodyguards as well, is that this decision sends – not so subtly – a message that the state has no business interfering in the personal vices and virtues of individual citizens.

It has been more than forty years since then Justice Minister Pierre Elliott Trudeau declared that “the state has no business in the bedrooms of the nation.” He overhauled the criminal code decriminalizing homosexuality among other major reforms. We could not imagine any personal sexual behavior as being criminal today. But there was a time.

Trudeau enshrined individual sovereignty over collective fiat in our Charter of Rights and Freedoms. Indeed the Ontario Court used  the Charter as part of the reasoning behind its decision. Appropriately so. Because since 1984 one would be hard put to find one law in Canada that expanded individual liberty and freedom of choice. Even if the choices are bad ones. That is the essence of a free society. The right to choose. Even badly.

The past three decades have seen a tsunami of suffocating rule and regulation that replaced the service state with the command state seeking to dictate every aspect of our lives. What language we speak, how we talk to members of the opposite sex, where we smoke, what we eat,  sending endless revenue reports, what and how we drive and of course with each new statist fiat comes a groaning bureaucracy to enforce it funded by our tax dollars. These experiments in social engineering now account for 15-20% of our budgets depending on jurisdiction. We have replaced a society that lionized the pursuit of the full-flowering of individual possibility and entrepreneurship with a society of cowering fear.

Why has this happened? Because we have been too complacent and conformist. And politicians too controlling and coercive. It’s “sexier” isn’t it to be an elected official who “commands” instead of “serves.” And of course all these yokes – so illegitimate in natural law – are always couched in terms that it is “for our own good.” That is nothing but sophomoric sophistry. It is to our shame that we have accepted it.

It is time for us to tell governments that we can take responsibility for our own personal behavior. That the state’s job is to give us services. To use persuasion and education not compulsion and coercion. And that persuasion should not have to cost us a nickel.

If expanded liberty is the brilliant possibility that could be born out of this decision, let us demand of our elected officials that they apply other  Charter principles to expand our freedoms as well. The Ontario Court used the “safety of the person” provision in the Charter to strike down the ban on brothels judging them obviously safer than street corners. Well the Charter also protects individual choice and minority language rights. Maybe it’s time that we demand that those be applied for our protection as well. So many have been the victims of state bullying for too long.

Another part of the Ontario decision also raises a metaphor in other areas. The Court stated that “living off the avails” should no longer be criminal unless there is coercion. That if two consenting adults decide to make such an arrangement freely, that is their choice. Coercion being the operative word. If the Ontario Court of Appeals supports the legal principle of what is in essence freedom of contract between consenting adults without the interference of the state and references the Charter as grounds for it, does this not raise the parallel issue that all citizens have the right to the same protections in other aspects of their lives? 

This could be a decision for all seasons.



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Beryl P. Wajsman

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