Bill C-36: Prostitution and Ignoring the Supreme Court

In December 2013 the Supreme Court of Canada - in the case of Canada (Attorney General) v. Bedford - found many of Canada’s prostitution laws unconstitutional.  

The old laws violated the constitutionally protected right to life, liberty or security of the person.  

The Court struck down sections of the Criminal Code pertaining to keeping a common bawdy-house, living on the avails of prostitution, and communicating in a public place.

The Court found that these laws endangered and negatively impacted the lives of sex workers.

A unanimous Court was clear - “parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes”.

It was in response to this decision that the Conservatives tabled their long awaited prostitution legislation - bill C-36.  

Given the findings in Bedford it is in the context of health and safety that C-36 must be evaluated.

The government has made it clear that C-36 is not about ‘nuisances’ but about stopping the victimization of women.  

This is a laudable goal - unfortunately the new law does not seem much better than the old - sex trade workers' life, liberty and security will still be negatively affected.

Quite simply the bill is a disaster.

Most of the new legislation seems to ignore the principles set out in the Bedford case.  

Bill C-36 criminalizes communicating for the purpose of prostitution, it prohibits the advertising of prostitution, and it even criminalizes some prostitution (prostitution was not even illegal under the old law).

The new law seem to accomplish the opposite of the Supreme Court’s direction - it makes the sex trade more dangerous.

For example, under C-36 it would perfectly legal for a 17 year old prostitute - in the middle of the night - to communicate with a john.  A potentially dangerous situation.  

Yet, if that same sex worker were to be accompanied by a fellow 17 year old prostitute - to watch each others back - and communicated with a john - the act would be criminal.  

The sex worker could be arrested, prosecuted and jailed.  The idea of a 17 year old prostitute is tragic but attempts at providing safety should not be criminalized.

Not only is this type of criminalization misguided but it can only serve to create dangerous situations - exactly why the Supreme Court struck the law down in the first place.

At a today's press conference the Justice Minister - Peter MacKay - confirmed this mind boggling interpretation of the bill:

Hon. Peter MacKay:  Some prostitutes we know are younger than 18 years of age. If they are in the presence of one another at 3:00 in the morning and are selling sexual services, they would be subject to arrest.

Question: That would still be considered a criminal offence?

Hon. Peter MacKay: That’s correct.  They’re selling it in the presence of a minor.

Question: Okay, so two 17 year old prostitutes are standing side by side in the middle of the night in what is considered a public place, they will be committing an offence.

Hon. Peter MacKay: And selling sex, yes.

Question: That’s effectively making them stay on their own and endangering their security.

Hon. Peter MacKay: Not at all. We’re not making them do anything.  We’re not forcing them to sell sex.

MacKay’s response to this question is simply unbelievable.  But it gets worse...  

Bill C-36 also prohibits any advertising relating to the sex trade.  This prohibition can also be seen to negatively impact security rights and endanger sex trade workers.  

It is interesting that on the surface C-36 seems to grant immunity to sex workers who advertise only their own services but MacKay’s answers at today’s press conference make this immunity protection seem illusory:

Question: There’s a portion where it says that advertising sexual services of someone else.  I just want to be clear.  If you advertise your own services, is that illegal?

Hon. Peter MacKay: If there is a direct connection to the selling of sex that does not present itself in a public way, then it would be legal but if it is done so in a way that is perceived as public or as being available to those under the age of 18, it would be illegal. [note: i would argue this is an overly narrow interpretation of the legislation]

Question: That would basically force a lot more women onto the streets. It removes their ability to work indoors.  It removes their ability to advertise and screen their clients.  Don’t you think that (inaudible) set out by the Supreme Court where they said explicitly anything that stops them from screening and meeting their clients is a danger to them and therefore unconstitutional.

Hon. Peter MacKay: I don’t read it that way

By definition advertising is public - it is communication.  An immunity granted in one section of the bill is removed in another.  

Regardless of how broad the immunity provision is interpreted one thing is clear.  Since a john's activities are illegal - a sex worker's advertisement is an invitation for police intervention.

As was put to MacKay today - this bill forces women onto the streets, it inappropriately criminalizes some prostitution, it creates incentives for dangerous behaviour, it removes the ability to work indoors, it limits (and at worst removes) the ability to advertise and screen clients.

The bill drives prostitution underground into conditions that jeopardize safety.  

Bill C-36 ignores the constitutional principles expressed by the Supreme Court in Bedford.

But sadly - MacKay does not see it that way.