Is the proposed prostitution law constitutional?

Could we get an opinion from the justice department?


The NDP has asked that the Harper government send the new prostitution legislation off to the Supreme Court posthaste, which would at least have the benefit of skipping us ahead to the inevitable destination of C-36. Alas, the government doesn’t seem much interested in referring the matter directly to the Court.

But what about at least engaging seriously with the debate about whether this bill will pass constitutional muster?

On Thursday, NDP justice critic Francoise Boivin gave the government another option: release the legal opinions it received before introducing C-36. In response, Justice Minister Peter MacKay seemed at first to suggest he would do so, but then he seemed to construe legal opinions as the public consultations his government sought.

Speaking to reporters a day later, Mr. MacKay, asked about the constitutionality of the legislation, nonetheless boasted of the justice department’s review of the bill.

We feel that it does pass constitutional muster. We have many experts within the department that have examined it for that sole purpose.

The constitutionality of legislation put before the House is actually a matter of legal dispute—justice department lawyer Ed Schmidt currently challenging the government in court on this count.

Both sides agree that the Minister of Justice has a duty to report to the House of Commons if proposed legislation or regulations are inconsistent with the Charter. Where Mr. Schmidt and his superiors disagree is over how that requirement should be interpreted.

Mr. Schmidt argues that Parliament originally expected the test for this would be whether, on balance, a measure is likely not in compliance. However Mr. Schmidt says that since as far back as 1993, government lawyers have been directed to approve all measures as long as they can imagine an argument in favour of compliance that would have a 5 per cent chance of success. The government does not confirm this, arguing any internal instructions must be kept secret as solicitor client privilege and cabinet confidences.

NDP MP Pat Martin raised a concern about this last March, arguing that his privileges as an MP were being infringed upon as a result. Liberal MP Irwin Cotler subsequently tabled a bill in the House that would have the law clerk of the House of Commons review bills and report any likely inconsistencies to Parliament.

If it is determined that any of the provisions of a bill examined in accordance with section 3 is likely to be inconsistent with the purposes and provisions of the statutes referred to in that section, the Law Clerk and Parliamentary Counsel who reviewed the bill must submit a report, in both official languages, to the Speaker of the Senate or the Speaker of the House of Commons, as the case may be, identifying the provisions of the bill that are likely to be inconsistent with the relevant statute and providing a brief summary of the reasons for the determination.

The Harper government, of course, has had several pieces of its legislation struck down by the Supreme Court—the changes it made to the Supreme Court Act around Marc Nadon’s appointment, a change to parole rules, a change to pre-sentencing credit and major portions of the government’s Senate reform proposals. Other laws passed over the last eight years might still end up in front of the Court.

Of course, if an unconstitutional bill is passed by Parliament, the courts will conceivably remedy that eventually. But there might be something to be said for saving everyone that time and effort. At the very least, the debate on the bill could be informed by a legal opinion that offers one take on how a bill might be squared with the constitution.

On Friday, not realizing that Ms. Boivin had asked her question on Thursday (I dared skip QP that day), I asked Mr. MacKay’s office if the government could or will be releasing a legal opinion from the justice department to the constitutionality of the proposed prostitution laws. Here is the response I received.

“Our Government is responsible for doing what it was elected to do – produce, examine and pass laws in the best interest of Canadians. The Supreme Court’s decision in Bedford was clear, raising concerns about the security and safety of women who find themselves in this inherently dangerous work.

That decision has informed our bill, a bill that protects the victims of prostitution by cracking down on the pimps and johns who fuel the demand for this dangerous activity, while putting in place measures that protect our communities, our children and other vulnerable Canadians.”


Is the proposed prostitution law constitutional?

  1. The Nordic model is based on the same feminist scholarship that is behind the Supreme Court of Canada’s Butler decision on pornography. In fact, it is a rational consequence.

    Here is Catherine MacKinnon, one of the prominent feminist scholars behind the legal reasoning in Butler on prostitution and the Nordic model.


    In C-36, Harper sets up an internal SCC dilemma/conflict between their Butler and Bedford decisions.

    The legal foundation of C-36 is the same legal foundation the SCC used in Butler.

  2. New Zealand has the best one so far. We should go them one further instead of imposing our Victorian disapproval.

    Separation of church and state.

    • The Nordic model is based on feminist scholarship and principles.

      When did Swedes and Danes and French become religious fanatics? Progressive feminist moderate political parties developed this model.

      The Nordic model has been demonstrated to reduce trafficking in women and children.

      • Fish don’t know they live in water, and ‘nordics’ don’t know they are often mentally still in the Victorian age.

        Consenting adults can do what they want. Leave sex workers alone.

        • Consent is not possible where there is such a huge imbalance of power between the parties.

          Feminists have ingrained that into us for decades.

          • There is no ‘imbalance of power’….and if you’ve had anything ‘ingrained’, then un-ingrain it.

          • Money balances the imbalance, imo. Any women working under a male supervisor in any other type of work, including the military and/or RCMP, may be coerced to having to provide certain things in order to keep their jobs, or progress thru the training process. However, there is no imbalance in sex work, for independent, consenting adult providers. They set the fees and rules and conditions to spend time with them, the clients pay for what is being offered, and both go on their way afterwards. An RCMP female officer has had her rights and person violated, due to a superior blackmailing or intimidating her. This kind of thing does not occur in sex work, due to the fact that sex work is about providing that service in the first place.

            You can’t try to force morality, judgment or the idea of imbalance when it is based on the services themselves. It is only when that service is not willing, and that payment is not provided that it becomes imbalanced. Just because some women don’t want some men to have sex, doesn’t make it immoral, and it certainly isn’t illegal.

          • I agree Sunnydee…I would just add one more thing.

            Blackmail occurs everywhere and to all genders for any number of reasons. A boss wants some documents hidden, or a lie told to the public, or the sabotaging of a colleague….all that has to be said is ‘if you want to keep your job….’

          • Sunnydee wrote:
            “Just because some women don’t want some men to have sex, doesn’t make it immoral, and it certainly isn’t illegal.”

            This thing is far more complicated, when you look at the wider social context and the political agenda of those who want to deal with it this way. Most women I know who are in positions of power appear to want men to want to have sex. By so doing, it puts men in vulnerable situations in their work lives and private lives. Especially, by making the buying of sex illegal, it places men squarely where women want them, susceptible to arrest.

            It’s like laws in general, which we are led to believe ar for everone. In reality, they are to keep those with less power and influence under control. The wealthy can easily get off, most of the time. Laws keep people obedient, some more than others. The political agenda behind these laws may not be as simple to comprehend as you try to make out.

          • Sue McPherson

            Girl you gotta stop smoking that stuff.

  3. Well, it’s official. MacKay’s trying to hide the letter, desperately. If the Justice Dept. lawyers opinion was favourable, MacKay would of course produce it. Seems that the Harper regime gambled on getting elected then letting a challenge wind its way through the courts again (at the expense to Canada of millions of dollars of gov’t lawyers and paperwork), while Harper disregards the real plight of sex workers and taxpayers. We get an idea of Harpers interest in Canadians. We got a jail for complex social problems, and otherwise drop the money in our campaign hat and we’ll see what we can do for you businesswise. Marie Antoinette was better by comparision. She was just selfish and oblivious. (If Harper based c-36 on Butler, that Dept. of Justice letter should be a doozy! Can’t wait for it to eventually be exposed. Keep going, journalists!) One last thought – Sweden never had a prostitution problem. It’s also smaller and homogenous.

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