When the Supreme Court of Canada struck down the country’s prostitution laws late last year, the move was celebrated by advocates for the women and men who often prefer to be called sex trade workers. Prostitution itself had never been illegal in Canada. The court now found that the old prohibitions surrounding it—particularly laws that banned brothels and bargaining in public over the sale of sex—forced prostitutes into more dangerous ways of doing business. The judges ruled that preventing them from working inside or from trying to screen out potentially dangerous customers violated their right to “security of the person” under the Charter of Rights and Freedoms. But Chief Justice Beverley McLachlin also wrote, in the final paragraphs of the unanimous decision, “That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.”
Justice Minister Peter MacKay tabled a new anti-prostitution act, Bill C-36, early this month that ended speculation on what those new limits would be. Where and how? MacKay’s answer: no place and under no circumstances. His law’s main innovation is to make it illegal to buy sex anywhere, anytime. Selling sex, oddly enough, remains legal, except in any location where children might reasonably be expected to be found. Nothing in MacKay’s approach seems likely to make it easier for prostitutes to try to work more safely, along the lines the court discussed, raising immediate questions about how his legislation can avoid being ruled unconstitutional, just like the laws it replaces. According to several legal experts, though, MacKay’s act stands a reasonable chance of surviving the inevitable court challenge, thanks to the way it frames sweeping new objectives.
The aims of any law matter a great deal in determining whether or not it is constitutional. In the Supreme Court’s decision on the old prostitution laws, for instance, McLachlin noted that the ban on running a “common bawdy house” was meant to prevent “neighbourhood disruption and disorder.” She found that denying prostitutes the safety associated with working in a permanent, indoor location was “grossly disproportionate” to this purpose. In general, the former prostitution laws were designed to combat the public nuisance aspects of the sex trade—too trivial an objective to justify violating prostitutes’ Charter rights. The preamble to Bill C-36, however, sets much broader goals, nothing less than fighting “the exploitation that is inherent in prostitution” and protecting “human dignity and the equality of all Canadians.”
Not only does the preamble assert that Parliament seeks to denounce and prohibit exploitation and inequality, it also sets out the aim of encouraging “those who engage in prostitution to report incidents of violence and leave prostitution.” MacKay said $20 million has been set aside for programs to help prostitutes change their lives. This sympathy for prostitutes as the real victims is the underlying justification for criminalizing only “johns and pimps,” and not those who actually sell sex. Even some law professors who are far from enthusiastic about Bill C-36 as a whole see its preamble as a potentially powerful justification in the Charter challenge case just about everybody—including MacKay—is now anticipating.
Carissima Mathen, a law professor at the University of Ottawa, says the preamble has to be considered in combination with the move to make paying for sex illegal, for the first time in Canada. In weighing the old prostitution laws, Mathen says, the Supreme Court had to balance “the very mundane goal of nuisance-prevention against the stark reality of the risks that street sex workers face, in the context of an activity that was itself legal.” MacKay’s bill won’t change the risks prostitutes face, but it makes buying sex from them a crime, and sets out those lofty objectives. “The government is hoping that the court will, first of all, accept that at face value, because it is Parliament’s prerogative to decide what activities are wrongful,” Mathen says. “Then you get into the issue of, how do your Charter rights apply when you’re talking about your choice to do something that is itself against the law?”
Arguments about the legislation are bound to swirl around what it means to criminalize buying sex but not selling it. For instance, a senior Justice department official insisted that the new law permits the arguably safer, indoor sale of sex discussed in the Supreme Court decision. (Editor’s note: John Geddes has more from the Justice official in this follow-up post.) The old law against “keeping a common bawdy house” had been interpreted to make it illegal even for a lone prostitute to sell sex out of her apartment. “That activity would no longer be prohibited,” said the official. “The selling of sex is not an offence under C-36; purchasing sexual services is an offence. Therefore it follows that a person who sells their own sexual services from their home could not be prosecuted for any criminal offence. Now, the purchasers would be.”
But Alan Young, a professor at York University’s Osgoode Hall Law School in Toronto, who also practises criminal law and represented three sex-trade workers in the case that led to the Supreme Court sweeping aside the old anti-prostitution laws, argues prostitutes are unlikely to sell sex out of their homes—or wouldn’t succeed if they tried—because johns will fear being caught there. “Purchasers simply won’t want to go to locations where they will be sitting targets for law enforcement,” Young says. “They will prefer to be moving targets, which is weird, because that encourages street prostitution, which is the only thing we know Canadians don’t want. There’s some consensus on that.” Other elements of the new law also seem likely to push prostitutes into the streets. It creates a new offence, with a maximum penalty of 10 years in prison, for profiting from running any business, such as an escort agency, strip club or massage parlour, where sexual services are sold.
If the real impact of MacKay’s legislation is to make prostitution more dangerous, or at least no safer than it has been, then the government will be relying heavily on that high-toned preamble to prevent the law from being struck down in court. “They said some of the right things, for example, elevating the objectives,” Young says. “But simply saying that it’s more serious doesn’t make it so.”
The seriousness of the objectives will have to be decided in some future court test. But that argument will be of interest largely to constitutional lawyers. For Canadians wondering about the practical point of the law, what it’s meant to actually do, its plainer purpose can be stated more simply. “Bill C-36 is not in any way in intended to facilitate prostitution,” said the Justice official. “It’s making prostitution illegal.” If last year’s court ruling raised expectations about the liberalization of prostitution laws, the Conservatives have taken the very opposite tack.