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.