Why Harper won’t override prostitution ruling

As leader of the opposition, Stephen Harper was initially reluctant to rule out using the so-called notwithstanding clause of the Constitution to keep same-sex marriage off the books.

As leader of the opposition, Stephen Harper was initially reluctant to rule out using the so-called notwithstanding clause of the Constitution to keep same-sex marriage off the books.

Throughout the 2004 federal campaign, he declined to say whether he as prime minister would ask Parliament to override the constitutional right of same-sex couples to marriage equality.

When he relented in 2005, Harper did not so much renounce the option as argue — in the face of a mountain of contrary legal evidence — that he could restrict access to marriage to heterosexual couples without using the notwithstanding clause to shelter his law from the courts.

Once he became PM, the stars did not align in such a way as to test his contention. In a free vote in the minority House of Commons, parliamentary support for same-sex marriage was reaffirmed and the issue became moot.

Fast forward to 2014 and the prostitution debate that has just landed in the lap of Parliament courtesy of the Supreme Court.

Last month, it unanimously struck down the country’s anti-prostitution laws after finding that their impact on the life and safety on vulnerable women was disproportionate to the public policy objective of controlling the sex trade.

Parliament has a year to come up with a more charter-friendly regime or accept a legislative vacuum.

To say that the government is unhappy with this development is an understatement.

In its immediate aftermath, Social Development Minister Jason Kenney all but cast the ruling as an unwelcome act of judicial activism. “I think that in our system of government there is an understandable primacy of Parliament as the democratic deliberative process and that my own view is that the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus,” he opined.

But the influential minister stopped short of pointing out the obvious: i.e. that his government has at its disposal all the restraining tools that it needs.

With the Conservatives in control of both houses of Parliament, only a lack of political will stands in the way of maintaining the anti-prostitution status quo via the notwithstanding clause.

There was a time not a decade ago when the ruling party would have seen the prostitution decision as an opportunity to pull the clause out of its long-standing state of federal disuse.

It was put in the Constitution for the express purpose of allowing legislators to have the last word on the courts on most Charter issues and more than a few experts believe that the refusal of past federal governments to even consider it as a legitimate option has contributed to the emasculation of Parliament.

But in spite of its natural ideological instincts and a public opinion potentially receptive to overriding the charter on prostitution, two words sum up why Harper’s government will still be disinclined to do so: abortion and Quebec.

Little could reinforce suspicions that a future Conservative government could limit or repeal abortion rights than the sight of Harper becoming the first ever prime minister to use the notwithstanding clause to override a fundamental right as established by the Supreme Court. (As an aside, the same reasoning at least partly accounts for the Conservatives taking a pass on previous opportunities to use the clause.)

And then there is the Parti Québécois’ controversial secularism charter.

Wearing his hat of multiculturalism minister, it was Kenney who suggested last fall that if the Quebec charter ever became law, Ottawa would explore whether it should take the lead in challenging it in the Supreme Court.

Some of the ethnic and cultural communities he has assiduously courted on behalf of his party would expect no less.

But if the courts were to strike down the Quebec secularism charter on the watch of a majority PQ government, it would by all indications have no qualms about using the notwithstanding clause to keep it in place.

And at that juncture, Harper, Kenney and others — should they override the prostitution ruling — would find themselves casting stones at Quebec on behalf of the province’s religious minorities from a glasshouse of their own making.

Chantal Hébert is a syndicated Toronto Star national affairs writer.

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