Legal experts divided on justice minister's prostitution reforms

Legal experts divided on justice minister’s prostitution reforms

It’s not clear how new law responds to the court ruling that struck down the old ones.


Of the many aspects of the prostitution law reforms that Justice Minister Peter MacKay tabled today, the part I was most curious about beforehand was how he would deal with the difficult issue of prostitutes communicating with their potential clients.

This was one the key elements of the previous laws surrounding prostitution that were struck down last year by the Supreme Court of Canada. Those old laws didn’t directly criminalize the buying or selling of sex, but outlawed activities that tend to surround prostitution—including running a brothel and talking in the course of buying or selling sex.

The court found that these restrictions made selling sex more dangerous to a degree that violated a prostitute’s constitutional right to security of the person. In the ruling, for example, conversations about sex for sale were cast, not just as sordid haggling, but as a chance for a prostitute to screen out a possibly violent customer. This sort of “screening,” the ruling said, might have “prevented one woman from jumping into Robert Pickton’s car.”

So when MacKay stepped up to the podium today for a news conference—just minutes after tabling his complex legislation and having given journalists far too little time to even begin to understand it—I waited for him to say something that might signal how he means police to respond when they see prostitutes talking with johns.

He had some prefabricated lines ready about “keeping our streets and communities safe.” And he was prepared to offer an enthusiastic summary of how his legislation, Bill C-36, will make it illegal to buy sexual services—the core new prohibition he’s borrowed from the so-called “Nordic model,” which puts the emphasis on arresting johns.

But on how his approach specifically responds to the court, especially on that matter of communication, I didn’t hear anything much from the minister.  So I asked about the ruling’s stipulation that prostitutes must be allowed to communicate with customers in order to avoid dangers.

“As far as dangers to prostitutes themselves,” MacKay said in part, “we are very much focusing on going after the pimps, the johns, the consumers, and providing effective off-ramps, exit ramps, from prostitution as a practice.”

That didn’t seem to me to get to the point, so I asked a follow-up. I don’t often report on my own questions, but here I include how I phrased it to put MacKay’s rather blunt answer in context:

Q “The court said they have to be able [to communicate with johns] in order to figure out the dangers. I don’t see anything in this bill that would suggest there will be free communication between prostitutes and potential customers.”

A “Right. And the police will be looking out for those who are attempting to purchase the sex.”

Here we have MacKay frankly asserting that his law would not allow any verbal give-and-take between prostitutes and those who want to buy sex from them. Instead, police will be cracking down on johns who engage in these discussions. How can this be the government’s strategy in light of what the court has already ruled? I asked two experts and got two sharply contrasting responses.

John Lowman, a criminology professor at Simon Fraser University and an expert on prostitution laws, said MacKay has failed to address the main thrusts of the Bedford decision on this and other issues, essentially inviting another round of court challenges. “This law is going to reproduce exactly the same problems constitutionally as the ones the Supreme Court struck down,” Lowman said.

But Janine Benedet, a University of British Columbia law professor and director of its Centre for Feminist Legal Studies, says MacKay has fundamentally changed the basis of any future legal battle. Whereas the old laws were largely designed to combat the public-nuisance aspects of prostitution, his new one is framed in its preamble as being rooted in “grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it.”

“They are changing the legislative focus,” Benedet said. “For the very first time we have a legislative statement that one of the objectives here is to actually reduce the demand for prostitution, and we’ve never seen that before.”

These two views of MacKay’s law couldn’t be less similar. Lowman argues the minister has simply refused to take seriously the court’s clearly expressed concern for the harm prostitutes face because of laws that force them to operate in shadowy, inherently more dangerous ways. Benedet suggests MacKay has given his law such lofty goals that any limitations it places on the way prostitution is carried out are constitutionally justified.

There’s a lot to debate about this bill. Unfortunately, that discussion is off to a muddled start because MacKay provided such imprecise interpretation and scant explanation of it at the outset. Still, here are four key elements of his legislation:

—Purchasing sexual services would be illegal anyplace. Penalties range up to five years in prison, along with escalating mandatory fines of $500 for the first offence and $1,000 for any subsequent offence.

—Profiting from the prostitution of others, including through businesses that sell the sexual services of others online or out of venues such as escort agencies, massage parlours, or strip clubs that also provide sexual services, would be illegal. Maximum penalty of 10 years in prison.

—Running ads on the sale of sexual services in print media or on the Internet would be illegal. Courts could seize materials containing the advertisements and require information to identify and locate the person who posted the ad.

—Communicating for the purpose of selling sex in public places where a child could reasonably be expected to be present would be illegal. The maximum penalty for this offence would be six months in prison.

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Legal experts divided on justice minister’s prostitution reforms

  1. There is no exception in the bill for the purchase of sexual services between married people or people in common-law relationships. Therefore if a married couple make a deal to trade sex for extra household chores, that’s a crime!

    • Worse than that, I must be careful where I am when I invite a lady to dinner, how she’s dressed when we have that dinner, how much cash I have in my pocket, and whether or not there are minors in the restaurant. The lady and I may be completely on the up and up, but if charged we might have to go to court to prove it.

      • That is sexist! Maybe you should call your MD and request a sterilization if you view women as objects

  2. Prostitution has always been legal in Canada. Why change it?

    I suggest the time has come to leave them alone. Their life, their body, their choice.

    • Prostitution exploits innocent women and children so Johns and perverts can have their way. Men are nothing but scum and perverted creatures. Men comprise of 99% of convicted paedophiles. The government is here to protect women and children from these misogynist predators. These men may be dangerous as Elliot Rodger.

      • Do be serious.

  3. I believe this law is set up to fail, the constitutionality will be challenged and I believe will be struck down. The great temptation for this Government to draft laws in order to control or criminalize what this Government considers immoral seems to continually backfire on them and in so doing brings the Attorney’s Generals office into disrepute, disrespect and general disdain for the present incumbent. One has to wonder at this Government accusing parties of the left of social engineering when they are doing the same under a different guise.

    • Of course it will fail. In the meantime, is appeases the religious-right core of the Reform Party, more votes and more donations. Peter MacKay has (yet again) prostituted the Progressive Conservative Party to the Reformers. How sad.

  4. I’m afraid the government has missed an opportunity to directly address the concerns of the courts. Janine Benedet may be correct that they have changed the debate, but the court’s concerns remain unaddressed. Another court challenge seems inevitable.

  5. You can sell it but not buy it? I am confused. Is this new piece of legislation a SNAFU? If not then a FUBAR. Thing is when sex is sold it is generally cash that changes hands, no paper trail, no possibility of tax revenue for the state here lies the conundrum

    • Exactly, you hit the proverbial nail right on the head.
      Anything done with cash, to the gov’t is illegal, and even criminal, but,
      if they can TAX it ?!, well then, suddenly it becomes wonderful, the “right” thing to do, just like our other vices, like booze, cigarettes, gambling, (and now) marijuana, …, which are ALL heavily taxed.

      LoL, if the Gov’t can’t profit from it via Taxation, then it must be evil, criminal, …

  6. Really. How about section 21 of the criminal code. Make it a crime for a john to purchase sex and you make everyone who encourages and facilitates that crime an accessory to the crime (the term is “party to the offense”).

    It may seem ironic or nonsensical, but a prostitute who offers her services, flashes some skin, and encourages the john to offer her more by promoting what she can do is a party to the offense and therefore subject to being charged for purchasing sex (from herself).

    Of course they won’t charge the prostitute. There would be prosecutorial guidelines and the police will be encouraged to go after the man. What do you have when you have a section of the criminal code that the government selectively uses only against men – you get a Charter challenge for gender discrimination.

    They like to push this image of prostitutes all being controlled by pimps but the fact is that many (most) of them are on their own. This law seems like an attempt to take them off the internet where there is an electronic trail leading back to any john who abuses them and force them out to dark streets communicating with prospective johns in the shadows (or wherever the johns feel safe).

    This is crazy. People can go out to a bar and hook up. Married people going on AshleyMadison or other websites to find partners for affairs. It happens. Sex is legal. We have no-fault divorce so having an affair is not particularly punished. But do it for money and it must be made a crime. Why?

    • Wait a minute…there are male prostitutes and women ‘johns’ (ala Richard Gere America Gigalo) so I don’t believe it could be challenged on Gender discrimination.

    • Your post is sexist and discriminatory! Who are you to judge about women selling their bodies without a male pimp? Men are the cause of exploitation since the days of Christopher Colombus and the slave trade.

  7. With greatest respect to Professor Benedet she is almost certainly mistaken. The language of a preamble may be an interpretive tool but it can’t over-ride the actual effect of the legislation therein.

  8. This is called appearing to do something effective about something which you have no control over and no way of affecting. Sadly the vast majority of government action falls into the same category but the useless parasitic political party hacks have no other choice but to keep pumping out pretend crap. If they ever admitted the truth or the “people” woke up and realized how badly they are being scammed being fired would be the lest of the parasites worries…..being hung from a handy street light would be a more probable response.

    • Yup. This is Senate reform and fixed election dates all over again.

      • Actually it is the case of the safe injection sites all over again and the denying of heroin as treatment for the very addicted. On this sticky issues the Cons like to set themselves up to be legally challenged. That way they can show their supporters that they tried to do the “right thing” (so-Con morally speaking) and failed due to a “liberal” court. It is kind of a win-win for them.

  9. Here’s an idea. How about reintroducing the old prostitution law about communication – but have it only apply to within 50 meters of a residential property, playground, schoolground. Or make it 100 metres. There are plenty of well lit streets a downtown area that would be outside of such a radius. If prostitutes and johns are given a safe place where they can do their business with minimal disturbance of the public, it is easier for the prostitutes to screen clients and seek police assistance if they are in trouble. Bring it out in the open, with nothing to fear from the police and any woman being abused/exploited will have an easier time getting help – but these are not the majority. Bringing it out in the open means better health clinic support, reasonable regulation and taxation.

    • Of course, that would be the right way to go, but this Government is not interested in doing the right thing, just interested in looking like it’s doing the right thing while in fact it’s not bringing anything constructive on the table. It’s only interested in its “moral compass” and the rest be damned.

      • You are quite correct in the way that this government wants to be forced to do the legally right thing because much of its base has certain ideas about what the “right” thing is and as this govt needs that base to get re-elected they can’t afford to alienate them.

  10. “No prostitute provides any model for freedom or action in a world of freedom that can be used with intelligence and integrity by a woman; the model exists to entice counterfeit female sexual revolutionaries, gullible liberated girls, and to serve the men who enjoy them.”
    ― Andrea Dworkin

    • “In prostitution, women have sex with men they would never otherwise have sex with. The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape.”
      — Catharine MacKinnon

      The scholarship of MacKinnon and Dworkin form the basis of the SCC Butler decision on pornography, but they seem to deem them irrelevant on pornography.

      • oops….deem them irrelevant on prostitution.

        • Women aren’t forced into, or kept, in prostitution.

          They can leave if they want….our society is overflowing with help. We even have support groups for support groups!

          But if they want to be sex workers, let ’em. No more Victorian helplessness.

          They can set up brothels [update the name] in the adult store section of town. Hire some security guards and they’re set. No pimps, no rough johns….and away from the kiddies.

          • Sorry Emily. I don’t know how many prostitutes you know, but in my line of work I meet them almost every day. The ones I meet are vulnerable, addicted and exploited girls. They don’t have a “choice” to get out.

          • Everyone has a choice, Gayle.

            What they don’t have is an excuse.

          • Spoken like someone who has never met a drug addicted sexually abused brain damaged 15 year old girl.

            But hey, stay in your bubble. It probably makes it easier to believe you’re right.

          • I have never lived in a bubble Gayle….and I’ve been around for some years.

            We have lots of help in this country for drug addicts. Even govt needles.

            And 15 year olds are not adults.

          • Where do you think 18 year old prostitutes come from?

            Truly you are in a bubble if you think there is “lots” of help for addicts. There really really isn’t.

          • Same place 15 year old ones come from.

            They make a decision.

          • Enough. Now you are saying 15 year old brain damaged sexually abused girls are making choices. I don’t care if you want to make yourself look stupid. Clearly you don’t either.

            You and I both know you don’t know what you are talking about. I am content to leave it at that.

          • Well you can flounce away all you want, but that doesn’t change the reality of the situation.

            Don’t play ‘pick the biggest victim’ with me. I’m not interested.

            I don’t buy it….and you shouldn’t either [surely you’re not that naive]….that ’15 year old brain damaged sexually abused girls’ are the only ones in prostitution. Or that all prostitutes come from that background.

            You don’t know anything about me, so enough with the snottiness.

      • “In banking, women lend money to men they would otherwise never lend money to. Thus money acts as a form of force, not as a measure of consent. It acts like physical force does in robbery.”

        “In the restaurant business, women serve meals to men that they would never otherwise feed. Thus money acts as a form of force, not as a measure of consent. It acts like physical force does in slavery.”

        “In nursing, women provide health care to men that they would never otherwise feed. Thus money acts as a form of force, not as a measure of consent. It acts like physical force…”

        Therefore, MacKinnon’s argument, taken to its logical conclusion, would prohibit any and all commercial actions between men and women.

    • That would be the same Andre Dworkin who thought all women should be compensated for sex because heterosexual sex is an act of violence against women. (she equated all heterosexual sex to rape I guess). In one line she took on the White Liberal Woman’s burden to go out and preach at all women who disagreed with her because they must be too stupid to do their own thinking.

  11. I see there are a lot of misconceptions about prostitution on this board.

    I cannot speak to research, but can speak from experience. I work with a lot of girls who have turned to, or been forced into prostitution. Every single one of them has addiction issues, and those addiction issues stem from being victims of sexual abuse.

    This myth of a fully functional, intelligent and stable woman relying on prostitution to make a living is just that – a myth. I am not saying it never happens, but that would be the exception to the rule.

    If you want to limit prostitution to those who genuinely engage in it as a choice, and not as a necessity to feed an addiction, then laws will not resolve this.

    Access to treatment, follow up treatment and ongoing supports is necessary. Not just 30 days at some treatment centre but long term, ongoing support.

    Though I suppose it is easier for some to claim all prostitution is a real choice, and to mock these girls by claiming the law will prevent them from having sex on their first date.

    • I don’t doubt your knowledge or experience, but I wonder if some of that knowledge and experience is a result of the laws? Perhaps if those women were not oppressed by the laws against them they might have a chance to do something better than they are doing? I realize that a world in which the only prostitutes were the ones who wanted to be prostitutes would put you out of business, but even so that would be a better world for all of us.

      • That’s actually pretty offensive, but then typical of someone who does not like what he hears. Attacking my objectivity is not going to change facts.

        The law is completely irrelevant to either creating or stopping prostitution. It can make it safer, or more dangerous, but it does not prevent or deter.

        And thanks so much for your concern about my career, but rest assured I am aware my wisdom falls on deaf ears. I will always have sad, damaged and vulnerable people to work with, largely because there are a lot of people out there stupid enough to believe that everyone is as motivated by self interest as they are.

      • I am not sure if you know this but young pimps actually hang out at the food courts in malls and pickup girls who are ‘wall-flower’ types. They become their boyfriends and

      • I am not sure if you are aware of this but young good-looking pimps often hang out a food courts in city malls and flirt with lonely wall-flower type young girls who are vulnerable. They become their secret boyfriends (“don’t tell your family or friends”). They are like a dream come true, buying the girls clothes and makeup, etc. which of course the boyfriend keeps at his place. He convinces his new girlfriend to run away from home and move in with him. He introduces her drugs and sex and then says “if you love me you will have sex with my friends and you can be high while you do it.” What do you know, a prostitute is born.

        • And you perhaps watch too much cable tv or Oprah or something. While I don’t doubt it happens, everything about underage prostitution and pimping has always been illegal so that’s all completelyy irrelevant in the current debate. And secondly, it’s not as if this was common and happens everywhere all the time. Those are isolated situations. Crimes for sure, but isolated and not a widespread public crisis.

          • I didn’t learn this on “cable TV or Oprah” but in my job as a mental health professional. I learned it from the city police in Calgary who come to warn us about trends in the malls in our city. Are you out of it or what???

    • As I understand it these issues are prevalent among certain types of prostitution, and these styles are also among the most likely to be “busted”. It is unlikely they were big issues for the defendants in the Supreme Court case, for instance. (I can’t speak to the precentages and prevalance of different types of prostitution, i doubt reliable data on the matter is available).

      If people are truly worried about trafficking and violence, work to remove these factors and if all prostitution is due to these factors, then prostitution will disappear anyway.

      • I’m not so concerned about trafficking. At least that was not my point. The kids I work with are generally lured into prostitution while living in state operated group homes. And you are correct – they probably were not represented at the SCC hearing. I am not really talking about the decision anyway. I am just pointing out we have a huge home grown problem, that we have to recognize before we can address it. The law will not stop it.

        I simply find it offensive when people who have clearly never seen how these girls have suffered call it a ‘choice”. That is so profoundly misguided and false. The ones who are not making this a lifestyle choice are the ones who are most vulnerable. Society does them a great disservice by failing to recognize that.

        • Do you think a law that address prostitution can bring about changes Gayle or do we need to completely re-address other things we are doing. I agree with you that we have a very poor safety net for helping rescue people who find themselves in these untenable situations.

          • I don’t. I frankly think it allows politicians to ignore the real issue while claiming they are addressing it.

            I appreciate the intent to target the johns, but I believe if they put more resources into counseling for sexual abuse and treatment for addictions, they would have more success in addressing prostitution.

            The issue of human trafficking is a whole other question.

            What offends me are people mocking this. When Canada criminalized spousal rape there were actually MPs making jokes about how they would have to get their wives to sign a contract. Some of the first comments here reminded me of that.

    • That’s pretty silly. The fact that your work seems to ensure that the only people involved in prostitution you know or have contact with are troubled, addicted, from abusive backgrounds and are either forced or coerced.

      How would you know that women who are “fully functional, intelligent and stable woman relying on prostitution to make a living is just that – a myth” or that it is “the exception to the rule”?

      It’s not like you’re likely to ever come across such women you claim are a myth through your work, so how would you be able to know what the norm, the exception to the rule or myths are? Are you clairvoyant or have some king of magic powers we don’t have? Because there’s no way for you to know any of these things you claim.

      • Who do you know that would chose to make a living in prostitution? Take a look at what the typical ‘John’ might look like. We are talking about men who have to pay for sex because they can’t get it for free or they like it so kinky or nasty that no one would give it over for free. Now you tell me who is having sex with these men because they want to. Think about it for a few minutes…how many of these men don’t bathe regularly; have atrocious dental hygiene and likely have STI’s. You really think women aspire to become prostitutes? Hello?

      • Does it really matter if they are exceptions or the majority? The point is there are far too many prostitutes who are not doing this because it is their choice, contrary to what some people here are asserting. You do not seem to be taking issue with that.

        I have a lot of connections with the police. I feel pretty comfortable with my assertion that women who choose this line of work are the exception.

        I also feel it is important to understand the context in which the choice is made. Making a choice because you feel there is no other option is not a real choice.

  12. A simplistic reaction to a complex social issue brought to you by a government of religious simpletons.

    • The intellectual foundation of the Nordic model is based, I believe, on the scholarly work of Dworkin and MacKinnon, and implemented in so-called progressive secular social democratic Nordic states…all religious zealots and simpletons?

      The work of Dworkin and MacKinnon forms the basis of the SCC’s Butler decision on pornography.

  13. I’m surprised that Geddes was able to find a legal ‘expert’ who thinks this legislation would have any chance of withstanding a constitutional challenge.

    Under a very thin veil of pretending to focus on johns, it blatantly reintroduces key provisions that the Supreme Court already ruled on, namely what used to be called living off the avails and communicating for the purposes of prostitution. The ruling said that in seeking to control a nuisance the government’s laws “go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

    The ruling was very clear and this bill does nothing to address that key point.

    Like their entire reign of error, this bill is about refusing to govern, and instead trying to pick a fight with the Supreme Court to create a wedge issue for the next election, in which the Conservatives are desperate to divert attention away from the corrupt, wasteful and reactionary governance we’ve endured for several years.

    • The Nordic model is based on the same feminist scholarship that underlies and was used by the SCC in the Butler pornography decision. It has been implemented in pro-feminist social democratic countries.

      Arguably, the Nordic model for prostitution is a natural followthrough for the direction set by the Supreme Court of Canada on the Butler pornography decision.

      • i.e. The Supreme Court might have to choose between the internalconflict they have created themselves, and how to resolve the different principles used in the Butler pornography decision, and in the heroin injection sites decision.

  14. “Those old laws didn’t directly criminalize the buying or selling of sex, but outlawed activities that tend to surround prostitution—including running a brothel and talking in the course of buying or selling sex.”

    I have been wondering about that too, whether the issue of brothels is no longer an issue (meaning legal) or whether it has gone back to being illegal to have them for prostitutes.