How the Justice department sees the new prostitution bill surviving

A Justice Canada official explains the strengths of the proposed federal prostitution legislation


In this story on the chances of the federal government’s new prostitution legislation surviving a likely Charter of Rights and Freedoms challenge in court, I quote a couple of law professors on why Bill C-36 might well pass constitutional muster.

But I also touch, though only briefly, on comments from a Justice department official. In fact, the official, who spoke on condition of not being quoted by name, basically confirmed what several independent experts had told me—that the government sees the bill’s preamble as key to its withstanding a court test.

For those following this issue closely, here are some longer quotes from what that official from Justice Minister Peter MacKay’s department had to say earlier this week.

—On how Bill C-36’s preamble sets out purposes that are dramatically different from the objectives of the previous laws surrounding prostitution:

“It explains why Bill C-36 is making prostitution illegal. It clarifies that Parliament sees prostitution as an inherently exploitative activity that always poses a risk of violence, that prostitution would no longer be merely seen as creating neighbourhood disruption or disorder or nuisance. That’s not to say that wouldn’t be included, but the objectives are much broader in C-36.”

—On how the preamble’s declaration of Parliament’s desire to “denounce and discourage” the whole sordid sex trade is certain to colour any future court’s reading of the rest of the bill:

“So just as the legislative objectives of the existing offences served as a starting point for the Supreme Court of Canada’s Charter analysis in [last year’s Bedford ruling, which struck down the old prostitution laws], so too would Bill C-36’s new legislative objectives, as reflected in the preamble, serve as the starting point for any Charter analysis of the C-36 reforms.”

—On how Bill C-36 might change the way judges weigh Charter issues on the safety of prostitutes—for instance, the Supreme Court’s finding in the Bedford decision that sex trade workers should be able to communicate more freely with potential customers to try to screen out dangerous ones:

“I think we also have to come back to first principles and remember that prostitution is no longer a legal activity in the C-36 framework; it’s an illegal activity. It’s something that ought to be discouraged and deterred… We can’t be analyzing one provision in the absence of the overall context, which involves first of all the preamble and the legislative objectives, which signify a fundamental paradigm shift from treatment of prostitution as nuisance to treatment of prostitution as sexual exploitation.”



How the Justice department sees the new prostitution bill surviving

  1. So a preamble, even if it is not factual and in fact contradicts the governments own study ( the 2006 report from the Parliamentary Committee on Justice and Human rights ), makes it constitutional just because they intend it to reduce harm even though they abrogate responsibility from any harm the legislation might cause by saying that prostitution can never be safe.

    Bertram Russell once wrote:

    No man treats a motor car as foolishly as he treats another human being. When the car will not go, he does not attribute its annoying behavior to sin, he does not say, “You are a wicked motorcar, and I shall not give you any more petrol until you go.” He attempts to find out what is wrong and set it right.

  2. I don’t see prostitution as a problem. Don’t force your morality onto me.

  3. Bill C-36 will be voted on today and then be sent to committee for study. Pay attention, Canada! Watch how many Conservative MPs vote. Then we will know if Harper rent his party in two. It may be the end of his regime, done in by his own hand.

  4. They can preamble all they want. It could pass thru to become a law. But it still wouldn’t be likely to pass thru an SCC challenge because the SCC is going to see right thru that preamble ramble. In other words, how are they prepared to prove that prostitution itself is actually dangerous (considering that things that made it less safe have been overturned?) They can’t prove a negative, and as mentioned the 2006 study, and many other studies already presented at the bedford case were accepted as evidence. The govt only presented their ‘fact’ that prostitution itself was dangerous, and the SCC unanimously didn’t buy what they were selling. So the SCC has already basically denied them the ability to use ‘dangerous’ as a reason. Another example is that can they prove that clients are dangerous. Can they prove that employers (massage parlour owners, strip club owners, and/or agency owners) are dangerous, or increase the dangers sex workers face? Because we’ve already seen that they consider indoor space safer, and massage parlours provide indoor space AND security. Agencies do the same, they offer to act as a 3rd party between the sex worker and the client, and the provide the transportation/driver/security to take her to appts. The govt can’t now come along and try to lump employers in as dangerous, or to be considered the same as pimps.

    In fact, i could envision a group of employers launching a challenge on C-36 changes, which would be interesting.

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