Reforming Prostitution Laws


Canada’s new Justice Minister, Jody Wilson-Raybould, a former Crown Attorney in British Columbia, has recently indicated that the federal government is considering changing course with respect to legislation concerning prostitution

(see: http://thetyee.ca/News/2015/11/27/Justice-Minister-on-Sex-Work/ and http://www.macleans.ca/politics/ottawa/prostitution-laws-could-see-more-changes-under-liberals/).

In December 2013, in the case of Canada (Attorney General) v Bedford, [2013] 3 SCR 1101 (see: https://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.pdf), the Supreme Court of Canada struck down three Criminal Code provisions relating to prostitution: section 210 (making it an offence to keep or be in a bawdy-house), section 212(1)(j) (prohibition against living off the avails of prostitution), and section 213(1)(c) (outlawing communicating in public for the purposes of prostitution).

The Supreme Court of Canada held that adherence to these criminal laws made engaging in prostitution (which was itself legal) extremely unsafe for sex workers; therefore, these laws were found to be in violation of section 7 of the Charter of Rights and Freedoms, as they had the effect of depriving sex workers of their security of the person. The laws, as they existed prior to the Bedford ruling, essentially forced prostitution “underground”; sex workers were unable to (legally) work in a safe location, hire bodyguards, screen clients, etc. (The laws were not saved by section 1 of the Charter.)

In response to the ruling, the Conservative government passed Bill C-36, which largely disregarded the key concerns raised by the Supreme Court of Canada in the Bedford judgement. Essentially, the Conservative government made the new laws concerning prostitution even more draconian than the previous laws, but tried to legitimize this approach by targeting buyers (“john’s”) rather than sex workers—at least by the letter of the law, if not the spirit. This was done primarily by re-framing how the government views prostitution; previously, governments legislating in the area of prostitution had focused on combating the “public nuisance” of prostitution, whereas the Conservative government claimed to shift toward treating “prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls” (see: http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html).

 

According to the Conservative government;

Bill C-36 seeks to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit the exploitation of the prostitution of others by third parties, the development of economic interests in the exploitation of the prostitution of others and the institutionalization of prostitution through commercial enterprises, such as strip clubs, massage parlours and escort agencies in which prostitution takes place. It also seeks to encourage those who sell their own sexual services to report incidents of violence and leave prostitution.

Bill C-36 maintains that the best way to avoid prostitution’s harms is to bring an end to its practice (see: http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html)

Bill C-36 makes it a criminal offence to (amongst other things): purchase sexual services (making prostitution itself an illegal practice—in fact, the Department of Justice notes that lap dances and “happy-ending” massages would also likely be considered by the courts to be illegal, given past court decisions finding that these constitute “sexual services”); advertise sexual services; receive a financial or other material benefit obtained by or derived from a purchasing offence; and communicate for the purposes of selling sexual services in specific locations designed for use by children. (There are some built-in “immunities” for sex workers and for bodyguards.)

 

This was an interesting approach for the government to take. A superficial analysis (as demonstrated here: http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html) may reveal that the Conservative government addressed the issues raised by the Supreme Court of Canada. However, a critical analysis of Bill C-36 shows that the impact of these new laws will be very similar to the impugned legislation and will continue to deprive sex workers of their right to security of the person along with other Charter rights (see, for instance: http://www.cba.org/CBA/submissions/pdf/14-57-eng.pdf).

The Liberal government would be wise to move quickly with respect to this particular file. In fact, there may be little choice in this matter, as a group in Vancouver has threatened to launch a constitutional challenge unless Bill C-36 is “immediately” repealed (see: http://globalnews.ca/news/2309848/group-threatens-liberals-with-new-legal-challenge-over-sex-work-law/). It is quite promising that Minister Wilson-Raybould has vowed to listen to sex workers in regard to possible prostitution reforms (see: http://thetyee.ca/News/2015/11/27/Justice-Minister-on-Sex-Work/); the Supreme Court of Canada made it quite clear in Bedford that it is imperative to consider the effects of any laws concerning prostitution on sex workers.

It will be interesting to see whether the federal government will move toward the decriminalization or legalization (and regulation) of prostitution, much as it has indicated it will do in regard to marijuana. After all, the legalization and regulation of prostitution and drugs (or at least certain drugs) would have a profound impact on the criminal justice system and would likely have a “trickle-down effect” with regard to other crimes. It has been well documented that criminal organizations benefit greatly from criminal prohibitions on prostitution and drugs; if prostitution and drugs were to be legalized and regulated by government, criminal organizations may lose their economic power and overall relevance, and may even eventually fade away.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.