Canada’s new prostitution law is a tough sell

Sex workers may not like it, but legal experts say Bill C-36 may well survive the inevitable court challenge

Jonathan Hayward/CP

Jonathan Hayward/CP

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.


How the Justice department sees the new prostitution bill surviving

Colby Cosh on Bill C-36, when Conservatives and feminists collide

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.


Canada’s new prostitution law is a tough sell

  1. Or we may conclude that it requires no laws at all.

    The term ‘bawdy house’ has been around for centuries….time to retire the whole mind-set and leave people alone.

  2. How is it possible to separate the act of selling and the act of buying? Sure, one person is the ‘seller’ and the other is the ‘purchaser’, but in order for one or the other to exist, a sale must exist (and therefore the passage of money between the two). So if it is illegal for the purchaser to supply payment, has a transaction been processed?

    Have we now created a system where we have increased the likelihood of raping prostitutes!?

    Thought experiment: Under the new laws, a john/sex trade worker meet up so that the sex worker can ply their trade. After the john has satisfied themselves with the trade worker, they are now confronted with a dilemma – do I pay them and become a criminal, or leave without paying and insist the sexual encounter was consensual?

    If that occurs, does it become rape because the sex acts were engaged under the premise of ‘promise to pay’ and the sex trade worker was stiffed on the payment? Would they have engaged in sexual relations with that client under other circumstances than payment?

    I honestly see the new legislation as going far beyond the original legislation that was struck down, as well as going further by making the purchase of sex illegal (which as far as I know, was struck down well before the current three laws were left in place). It’s just another way to funnel $20 million to police organizations under the guise of ‘help’.

    • “How is it possible to separate the act of selling and the act of buying? Sure, one person is the ‘seller’ and the other is the ‘purchaser’, but in order for one or the other to exist, a sale must exist (and therefore the passage of money between the two).

      You can’t, so if the purchase is illegal, the sale is also illegal. People keep saying that under the new law, the sale of sex will be legal. That’s not correct. The entire transaction will be illegal, but only the buyer is subject to criminal sanction.

      Consider a parallel. It is illegal to sell cigarettes to a minor. There’s no law on the books banning minors from buying cigarettes, but one would never say that it’s legal for minors to buy cigarettes.

      You’re right, though, that the purpose of the new legislation is to make the purchase of sex illegal (which was never the case before). That’s why it will likely withstand constitutional scrutiny.

    • And can’t a legitimate case be made against the sex worker that she ‘aided and abetted’ a criminal act (if such a law exists in Canada) and or ‘conspiracy”. There is a legitimate concern that while she/he may not be charged for selling sexual services, she could still be threatened with other charges in order to get her to testify against her clients. And, in Sweden at least, the legislation affects landlords. Do we know if C-36 is absolving the landlords of sex workers who do rent their indoor location for the purpose of work from any criminal charges related to exploiting them? Because in Sweden, landlords can be charged, and the result is that sex workers are often evicted.

  3. “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. ”

    Isn’t constitutionality about not letting the state add to the harms people face? So that would be why MacKay is saying prostitution is so harmful, because he’s trying to justify the state adding to people’s (prostitutes and in the case of minors selling sex in each other’s presence – teenage prostitutes) harms? So like a police officer can fire a gun on a person when that person is also holding a gun and threatening to harm people? Wow, with a preamble Harper/MacKay are trying to introduce a new standard of harm justifying state violence against people? What’s next, arresting people who don’t vote Conservative cause they’re dangerous for society?

  4. This law is just idiotic. The problem with the old law was that prostitution itself was legal, but it made engaging in a lawful activity too dangerous. Exactly the same problem remains with this new bill.

    While it is true that the government’s objective is important in determining constitutionality, if the law does not in fact advance that objective, then the law is not saved by the objective. I forget the exact wording of the Oakes test, but I remember its substance, and a government cant claim to be saving women from oppression while actually endangering them.

    In fact, this law probably makes things worse for prostitutes and their clients. It is sheer insanity to believe that one can threaten one party to a deal with criminal sanctions to make the other party to the deal safer. If the deal itself cannot be conducted lawfully, it doesnt really matter which side is risking criminal sanctions, the deal will be a dangerous one to make, for both parties.

    Not to mention that every john will be potentially subject to blackmail from the prostitutes they visited, which is sure to end badly for all involved.

  5. The law is basically a rephrased version of the old one. Preamble or no, it does exactly the same thing; it may even be more restrictive.

    If I were a gambler, I’d put money on it being tossed by the SCC.

    • And i would add, doesn’t the existence of the preamble actually open it up to a challenge? Wouldn’t the govt be back on the hook to actually prove now that prostitution itself is inherently dangerous. because that one trick pony did not go over well with the SCC as a reason to keep those few laws. And most people don’t seem to really grasp the fact that only 210, 212(1)(j) and 213(1)(c) were overturned the rest, the majority, and the important laws are still there, including anything related to actual exploitive relationships. Add the fact that trafficking is still illegal, as is assault, the question is, why can’t sex workers be treated like any other human being, and have the same criminal charges laid against anyone who actually harms them just as any other man/woman would have.

  6. Well, we definitely need to do something, because in Ottawa-Vanier, 90% of the so-called “sex”-starved (and I do mean -LoL), are a bunch of predatory big-shot Federal-Gov’t-John employee’s, that magically get off on stern warnings,…, and, unfortunately, that’s all they get ?!
    Duffy-Puffy ring a bell ?
    But sadly though, for any other normal-hard-working-non-Govt-TAXPAYING-John, instead, they get the book thrown at them.?!
    Remeber, Vanier is too close to Rockliffe, Harpos home, and children, …, so we wouldn’t want any full-blown scandals now would we.
    lol – …seen it all, lived and worked there too long.

  7. Very strange ruling indeed, that the anti-bawdyhouse law was only to prevent “nuisance.” What about destruction of neighborhoods, increase in undesirable traffic, corruption of minors, and collapse of home values? Are those the result of a ‘nuisance’? This would mean that no municipality had any right to determine what commerce is transacted where. In other words, you can put an orphanage in your basement, a plastics shop on floor 1, a residence on the top floor, and a forge in your back yard. The neighbors will comment on the color you bring to their street of 12-room mansions.

    • Well, since that isn’t happening now, and there are ‘bawdy houses’ all over the place (just because it has been illegal doesn’t mean that there are no sex workers in your neighbourhood, and probably in your building, and probably shopping at your grocery store, taking their kids to school, being soccer moms or in your yoga classes, etc. In other words, people, just like you).

  8. I’m very surprised there’s such resistance to this new law. When one notes that in European countries where prostitution is legal, the unfortunate prostitutes are often lured there from poor countries with promises that don’t materialize and then forced to work as sex workers. Inform yourself on the legal prostitution situation in the Netherlands and Germany. It’s a pathetic situation and not one we would want to emulate here. I don’t think there’s any perfect answer, but this is a start.

    • Inform yourself about it. There is a difference between sex work and human trafficking, and a difference between MIGRANT sex work and trafficking. The fact is the majority of migration of sex workers is voluntary, as they move out of a country that has criminalized sex work, and into a country that has legal prostitution. Make sense? Of course it does, don’t believe the hype of the false reports. There is ample evidence, from places that are actual experts on human trafficking, that what the abolitionists anti-sex work NGOs are saying is complete bunk.

  9. The issue of selling sex in Canada involves not just Canadians, it involves women and children from around the world. To legalize prostitution would be to support child and women sex slave trafficking. In the Netherlands, where prostitution is legal, the number of child and women sex slaves has increased dramatically. (Surprise, surprise, there are not enough Dutch women who are willing to be prostitutes.) In the countries where prostitutes are not charged but purchasers and pimps are charged, trafficking dramatically decreases. Our decision as a nation of how to approach prostitution involves the question of whether as a nation we want to support the trafficking of sex slaves. If we fully legalize prostitution there will be a dramatic increase in sex slaves in Canada, it can be no other way. Research and clinical work with women who are in or who have been in prostitution shows clearly the high incidence of childhood abuse and trauma among women who choose this work. This is a vulnerable population, to pretend otherwise is denial of clear reality. The goal of this tabled law the law is to support the vulnerable (and prostitutes are a vulnerable population according to the research) while holding the John’s and pimps accountable. There is a large volume of solid research on this issue and it is good to see that the government is taking the research seriously! Its time to look beyond ourselves and take our heads out of the sand!

  10. What legal “experts”? Benjamin Perrin, a prof at UBC, and hired directly by Harper as legal counsel for the PMO, wrote several Globe and Mail Op Eds slamming the Bedford parties and the courts for their judgements at every turn, right from Himel. Remember what he (and other legal activists and apologists for the Conservatives) said about the Himel Bedford decision? http://www.theglobeandmail.com/globe-debate/swedens-fix-jail-the-johns/article4327599/ “The controversial decision of Madam Justice Susan Himel of the Ontario Superior Court to gut federal prostitution laws with the stroke of a pen this week is a striking example of judicial activism run amok. While the ruling will undoubtedly be appealed…”

    The gov’t listened to this advocate for radical feminism and appealed Himel and the Appeal Court decisions. And the gov’t lost. Now the Supreme Court ruled, and these “legal experts” consulting the gov’t are saying that the new legislation is constitutional. When will the gov’t stop listening to the “legal experts” who are consistently wrong when it comes to understanding the law as regards prostitution? When anyone has a bad lawyer, it’s a stupid client who keeps them after losing case after case on bad evidence and understanding of procedure and spirit of the law.

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