Bill C-36: When conservatives and feminists collide

‘We seem to have exchanged demonizing women for infantilizing them,’ writes Colby Cosh


Have you read Bill C-36, the Conservative government’s attempt to put the concept of prostitution back into the Criminal Code after the Supreme Court more or less tossed it out in December? A lot of commentators have not been able to help observing that there is something faintly ironic, perhaps almost jokey, about C-36.

For decades, we had these leftover Victorian laws against “living off the avails” and keeping a “bawdy house” without any actual ban on prostitution itself. Victorians were fairly respectful of the limits to state activity, and knew that prostitution is one of the oldest, most universal human institutions. They did not presume to be able to eliminate it. They merely sought to drive it out of sight, thrust it beyond the consciousness of respectable society. They treated it as a threat to social foundations: the sacrament of marriage, modesty, patriarchal primacy, the value of virginity, et cetera.

This law worked reasonably well on its own terms—on the premise, that is, that harm inflicted on socially dangerous “fallen” women was not of much concern, but the public visibility of the sex trade would send the entire Anglo-Saxon Protestant way of life straight to hell. We have all moved on from that kind of thinking: We no longer consider, in general, that it is worth it for some people to die or suffer in order to preserve the sensibilities of the bourgeoisie. That is, in effect, why the Supreme Court ditched the existing laws against what one might call para-prostitution. Those laws reflected a different social order, a consciously coercive, unequal class structure supported by the power of the state.

There are those—fringe leftists, mostly—who believe that our Conservative government is a genuinely small-c conservative conspiracy that means to wind the clock back to Victorian days. There is a kernel of truth in this: Canada is a Victorian creation, and the Conservatives like to exploit the charm that still attaches to royal warrants and historic 19th-century battles. But, in general, you have to be pretty stupid to believe that a government that includes Michelle Rempel and John Baird and Tim Uppal would like to go back to the Good Old Days.

And that brings us to the preamble of C-36, which lays out the guiding philosophy of the law. It is not a 19th-century philosophy: It is straight out of the 20th. The Parliament of Canada, we are told, “has grave concerns about the exploitation that is inherent in prostitution.” It also “recognizes the social harm caused by the objectification of the human body.” It is crucial not only to discourage prostitution itself, but to prevent its “commercialization and institutionalization.”

This is the verbal palette of second-wave feminism, and hardly that of  William Ewart Gladstone. A Conservative government has problems with “commercialization and institutionalization” now? Stick it to the man!

“Objectification of the human body” is an old favourite for those of us who entered university in the 1990s: “Objectification”, thought through all the way, is a frightful-sounding word for “buying a service from somebody.” Same thing with “exploitation.” Exploitation is inherent in buying sex, but equally so in buying a can of peas at the grocery store. You probably did not know that the Conservative prostitution bill contained a prolonged grumble about how only evil, nasty types of human relationships involve the exchange of money, with the implied alternative presumably being something out of John Lennon’s Imagine. But it does.

It has often been observed that conservatives and feminists have a way of making ad hoc alliances whose effects are seemingly anachronistic. C-36 may very well end up driving prostitution underground, and harming prostitutes, as effectively as the law it replaced. But the Victorians controlled female sexuality, at least partly, because they feared its dangers. This is something people have trouble understanding, for example, about the classical view of illegal abortion: No one was as primarily concerned with it as homicide, but as a risky way for errant women and sleazy men to conceal unlawful fun.

We seem to have exchanged demonizing women for infantilizing them. (Perhaps someday we’ll discover some kind of crazy third alternative!) The new law concentrates on the demand for prostitution, rather than the supply, because “women are vulnerable” and the sex trade is never a choice—except possibly for some male prostitutes, although Conservative statements on the law always speak only of women and children. Somehow, this is exactly the opposite approach from the one our law takes to the war on drugs: In that case, the demand is considered relatively harmless and natural, while the suppliers can never be persecuted harshly enough. Why do you suppose this distinction is never noticed, much less accounted for?

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Bill C-36: When conservatives and feminists collide

  1. Wow….yer on a roll, Cosh.

    A modern view of an old subject and very well done. Thank you.

  2. Colby Cosh: intelligent. Some feedback;
    The Catholic Church is a huge feather in Harper’s cap of claimed voters. No, no MP in the Conservative party wants to go back to the days of the monarchy (except maybe Harper himself) but all over the web you can read the Catholic Church Civil “Rights” websites about how they feel it was a mistake for countries to introduce charter rights and how they aim single-handedly to bring western countries back to God’s graces, by re-introducing enforcing religious moral edicts through criminal law. Witness Africa and the Catholic church intervening in court to re-criminalize being gay. Not gay marriage; being gay.The Evangelical Legal Christian Fellowship is right by their side in Canada. Why do they so desperately want to entrench Trinity University? Because this is an old way of viewing criminal law which they want to promote in Canada. Putting church and state back together, crazy but they’re trying.

    Preamble of Bill C-36: funny. Constitutionality means the law can’t contribute to harms the individual faces in life, and the courts are well aware of that standard. A preamble stating the object of the law has nothing to do with altering the test of constitutionality. Gov’t might as well introduced a new law which tells cops to beat smokers over the head with poisonous steel hammers then said in the preamble that the object is to discourage smoking because smoking is harmful and undignified. Not constitutional.

    And the distinction Mr. Cosh refers to? Money. Gov’t allowed gambling when they were in debt for the Calgary Olympics. Marijuana is now allowed not because the gov’t did research; the Cons are not for evidence based policy.

  3. The problem is that prostitution does tend to lead to harm to the suppliers of the service. Maybe it’s an artifact of outdated morality; perhaps it’s a biological issue related to the way sex developed for reproduction; but most prostitutes are engaged in the trade as a means of survival rather than a reasoned decision to pursue a commercial opportunity. For every person who chooses prostitution as a preferred means of earning money, I suspect there are many more who profoundly regret doing it. There are few who would want to see a loved one enter the sex trade, either. Perhaps that’s Victorian demonization, or perhaps it’s a gut-level sense that prostitution is a bad thing. Prohibition of prostitution, like gambling, is something that’s hard to argue against from a libertarian perspective. However, a pragmatic observer would conclude that there are a lot of problems associated with both of those traditional vices.

    • I’m not sure who Atomic Walrus is to be speaking for “most” sex workers but perhaps you would like to site your sources for that. And really, really fact check those sources if you do. There are several studies with fake statistics that have been thoroughly debunked (

      You cannot just make things up and claim it as pragmatism. You cannot think to yourself ‘I imagine this is what sex workers are thinking, based on my own ideas of sex and morality’ and then claim that as what people are actually thinking. Your imagination does not count as reality and does not belong in a debate about what is good for other people.

      As an actual sex worker, I can say that many of us do choose it. I would not be sad to see a family member enter the profession, nor do I deeply regret my own involvement in the trade. In fact, I have been able to use the high pay and flexible hours to improve my life immensely. I do somewhat regret the time I spent working in retail, but when I first came out of university I needed a job to survive. Funnily enough, despite the fact that retail was a survival job for me, which I was hoping to exit, and which I found rather demeaning, I don’t see anyone suggesting retail work should be abolished or criminalized. No one has attempted to end demand for overpriced clothing that I am aware of (despite serious issues with near slave labour in textile factories).

      I work and interact with other escorts and with sex worker’s rights organisations. We are constantly told that we are not representative but there are no actual numbers to support that. There are just a lot of people who have nothing to do with the sex trade confidently speaking to what “most” sex workers are like. I’m getting a little sick of seeing people pull facts and statistics out of their asses so that they can justify their condescending view of sex trade workers and their desire to take our incomes away.

  4. The Nordic model is based on the principles of modern feminist thought and implemented by progressive social democratic governments in Europe.

    It is not where feminists and conservatives collide. It is where they join together.

    Prominent feminist legal scholars, like Catharine MacKinnon, whose scholarship underlies the SCC Butler decision on pornography, support the Nordic model, as a step forward for women, not backwards.

  5. @whyshouldi

    And prominent feminist university grads like Maya Angelou, Dr. Brooke Manganti, and maggie mcneil would tend to disagree with you.

    You can’t decide things based on what you would like to do or not like to do with your body, your life, your income, then apply it to other people. There is no solid research to prove that prostitution in itself leads to any actual physical or emotional harm to sex workers. You can anecdotally give examples of individuals with issues, but you can’t claim that it is directly linked. How can you, to do so you have to directly link that sex itself causes physical and emotional harm. The govt is trying to legislate emotions and feelings, even to the point of clients of sex workers. They decided, without asking anyone, that they know what is in the hearts and minds of these people. They didn’t bother to ask the people who actually have done the research.

  6. There are several flavours of conservative, and one I find most objectionable is the one which continually wants to ban activities between consenting adults. The arguments of social harm and protection of women (why not male prostitutes?) fail in the light of Scandinavian experience. Someone said that social conservatives of this ilk “want to ban all pleasures they are not personally inclined to”.

  7. And hidden deep inside this legally and morally bankrupt legislative bundle is C-36’s provision 164.1 – less than 100 words that allow the Attorney General to determine what is deemed (the law’s wording) “intimate”, “voyeuristic”, or “obscene” – broad undefined qualifiers empowering a government official to declare material from ‘Lady Chatterley’s Lover’ to the selfie you sent to your spouse ‘obscene,’ ‘illegal’ and punishable under federal criminal law. Welcome to the 1950s – courtesy of the Harper government.

  8. Let’s just call it what it is….fascism, in the vein of a dystopian Margaret Atwood novel.

  9. Good article. I don’t understand the headline, however. Given the content, how about, “When conservatives and feminists collude.”