How will parties approach the legality of sex work after the Supreme Court decision?

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fortunate

I think the tweets are pretty specific, you'd have to have not read them to think otherwise.   also, if more are needed, one only needs go to the tweet account afterbedford for anything i haven't included.   They are calling for the SCC to vet it because it will be a complete waste of time to go thru the courts yet again when it is clearly failing to do what it set out to do.   The question isn't why are they asking for it to be vetted, it is why isn't the govt eager to prove that it is a viable law and simply send it to be SCC approved.    Pondering, as usual you are trying to deflect what the real issue is.

Gustave, it is my opinion that when people were looking at the question of sex work and it occurring around under 18, or near schools etc, the majority of them were thinking of where brothels might open up.  I've never seen any one anti commenting about street workers, mostly because street workers are already NOT working near schools or day cares, or even in residential neighbourhoods.   Almost everyone who objects, is objecting to brothels on every corner, due to the overturned section 210, regarding bawdy houses.  The media also helped blow that up, by referring to bawdy house only as brothels.   However any commerical business would have to open only in a business zoning, anyway, so the city bylaws would restrict where it opens (and its hours) EXACTLY the same way they restrict all adult entertainment venues.   It is an attempt to mislead people, this additon of under 18 during in public, that that was what people were talking about when they were surveyed. 

The vast majority of people have probably never seen or know that they've seen a street worker, and they surely have never known if or when a 'bawdy house' is near them.   A bawdy house according to the law can have as little as one single person operating out of it, and is where the majority of calls are done.    i actually read one objecter who said that she didn't want a sex worker in her apartment building because one time some guy knocked on her door by mistake, and...... well the comment was already nonsensical, so it isn't worth repeating.   joy Smiths claim tho is, that if you outlaw public solicitation where any under 18 year old might be, then that means that a young pretty woman isn't going to have guys come up to her thinking she's a sex worker.  Cuz that happens ALL the time.  And cuz a law is going to prevent pretty young women from being approached by men.

You seem to have a lot of confidence in what the judges will or won't do.   There have been laws about public solicitatiion in place before, the judges had no problem charging street workers with these laws.  You sound like Hillyer, who claims that advertising is currently illegal, that C-36 simply continues to make it illegal, but since sex workers are already 'breaking the law' according to him, he sees no reason why they can't simply continue to break the law and continue to do their advertising.   Then why is the law there in the first place, if he considers it something readily broken.  (btw, advertising is not illegal, and that is something he should already know was dealt with in the courts long ago)

 

@ Unionist, I haven't seen anything like an official statement from Bloc or Green or NDP, altho it seems like individually they are against the bill.    I was thinking, if they are like the Cons, they are unified in their POV as parties, so if NDP Garrison says he is voting against the bill, chances are that is a party policy just not released yet.  

Of course the Justice committee, when it gets to that stage, is going to be heavily stacked to ensure the outcome, but at least it will go to the committe.  Or course they have done a committee session on the topic of prostitution before in 2004 or so?,  where the conclusions were it would be better of decriminalized and regulated, with everyone except the Cons on board with that idea.    

 

lagatta

I tend to think the same. I could never vote for it as worded, although I strongly disagree with the sex-industry representatives here (sorry, just responding to the ridiculous "rescue industry" stuff. People in community associations, whether La CLÉS or Stella, don't make a lot of money or get rich grants from anyone. I don't belong to either, nor am I involved in either. I do know members of both.)

Heather Mallick's recent comment says pretty much the same. http://www.thestar.com/opinion/commentary/2014/06/10/why_did_prostitutio...

But I do want more for marginalised women, and men for that matter, than the sex trade.

kropotkin1951

fortunate wrote:

joy Smiths claim tho is, that if you outlaw public solicitation where any under 18 year old might be, then that means that a young pretty woman isn't going to have guys come up to her thinking she's a sex worker.  Cuz that happens ALL the time.  And cuz a law is going to prevent pretty young women from being approached by men.

I doubt if the law will change that reality but don't kid yourself, many young women are approached by men every day on our streets. I've heard the stories from my women friends. It is a part of our misogynist culture whether you see it or not.

Unionist

fortunate wrote:

 

Of course the Justice committee, when it gets to that stage, is going to be heavily stacked to ensure the outcome, but at least it will go to the committe.  Or course they have done a committee session on the topic of prostitution before in 2004 or so?,  where the conclusions were it would be better of decriminalized and regulated, with everyone except the Cons on board with that idea.    

 

[url=http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2599932&L... - 2006.[/url]

And [url=http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode... Harper govt's response.[/url]

 

 

Unionist

Hey, folks, is it possible to stop the mudslinging etc. and just keep to the topic of this thread? There really are lots of other threads where we can (pointlessly) debate abolition vs. how good the sex trade is for the economy, or whatever. I know I've made this point a number of times, but I just like to hear myself talk. Ok, thanks.

 

fortunate

lagatta wrote:

I tend to think the same. I could never vote for it as worded, although I strongly disagree with the sex-industry representatives here (sorry, just responding to the ridiculous "rescue industry" stuff. People in community associations, whether La CLÉS or Stella, don't make a lot of money or get rich grants from anyone. I don't belong to either, nor am I involved in either. I do know members of both.)

Heather Mallick's recent comment says pretty much the same. http://www.thestar.com/opinion/commentary/2014/06/10/why_did_prostitutio...

But I do want more for marginalised women, and men for that matter, than the sex trade.

 

I have a number of links to stories about the rescue industry NGOs, if you are interested in why they are presented that way lol.   There are always legit ones, and there are always sincere volunteers, but there is also a vested interest in keeping the numbers high to keep the donations high.  

On the topic of your link, apparently even Joy Smith is backpeddling on the streets issue.    She now tweets she "wants #C36 changed: sex workers should only be arrested & charged "if they try to work near a school" 

So that's an improvement, however the rescuers are still going to have an issue that C-36 is still finding ways to criminalize sex workers themselves.   And in what is an obvious nuisance NIMBY law clause.   

It is unfortunate that Mallick decides to quote Rachel Moran, who has been exposed as another sex trafficking NGO fraud, since she was never a sex worker, and didn't even write the book (memoir) being quoted lol.    (you can see the info in my links threads in the sex worker forum)

She has also grossly exaggerated the type of comments in online articles, since I have read many, and commented on many myself.  While there is a slight majority of male versus female comments, the vast majority of comments have been pro choice rather than entitlement.   In fact many comment that they never have nor ever will use the services of sex workers, but they can at least recognize the bill is flawed, that its announced intent is not what it actually says, and that it is very clear sex workers are not being consulted on the matter.   The number of hilarious female comments are about equal to the hilarious male ones she describes.    At least one female commenter will chime in to say that in her security controlled building, she doesn't want sex workers to be able to run their one person 'brothels' because some guy some time might knock on her door by mistake, and she somehow feels so threatened by that image, she wants brothels to only be in commercial zones (away from schools obviously) 

Comments can be amusing, and illuminating.  It is interesting that i cannot find a comments section for that story by Mallick :)

Like PEERS, Stella is by sex workers for sex workers.    They dont' benefit by exaggerating sex trafficking stats, they benefit for advocating for better working conditions for sex workers.    And dissemination of safety information, as does maggiestoronto and POWER of Ottawa, and spoc.ca and so on and so forth :)

 

 

fortunate

kropotkin1951 wrote:

fortunate wrote:

joy Smiths claim tho is, that if you outlaw public solicitation where any under 18 year old might be, then that means that a young pretty woman isn't going to have guys come up to her thinking she's a sex worker.  Cuz that happens ALL the time.  And cuz a law is going to prevent pretty young women from being approached by men.

I doubt if the law will change that reality but don't kid yourself, many young women are approached by men every day on our streets. I've heard the stories from my women friends. It is a part of our misogynist culture whether you see it or not.

 

Yes I know that.  That was my point.  And that this law was not going to do anything about that happening, nor would the lack of that C-36 law encourage it at all.           

Brachina

 I wouldn't call it disingenuous, people reply to forums on thier own time, not instantly, so its no big deal.

Pogo Pogo's picture

Unionist wrote:

Pogo wrote:

With some issues like this the cost/benefit of taking a stand is weighted as people will likely to react more negatively to a stance they don't approve than positively to a stance they approve.  So there is little reason to take a stance earlier than necessary, particularly as there is going to be a government policy soon enough.  The only reason to take a stance would be if by doing so it would help change the policy direction. 

People and organizations should take this vacuum as an opportunity.

 

Ok, here's your opportunity. What stand do you think the parties will take on criminalization of the purchase of sex?

 

Just to apologize for not replying.  I started a post twice and each time I had to kill it due to work.  Now things have progressed  that a response would be somewhat disingenous.  Let me say that I grant Unionist the point that these issues in particular are at the heart political and call for political action, but I also understand that just like the divisions in babble among people who otherwise hold similiar places on the spectrum, the NDP is also divided.

fortunate

At least we can see from the tweeting that Libby Davies is against C-36, not a surprise i know, but her absence at the debate was due to committee stuff.  I wonder how many opposition mps were conveniently made to be absent, and why the push to restrict the debate time when they wanted it to go longer.  

https://twitter.com/LibbyDavies

Back in #yvr after over the top week parl hill politics. Want'd to speak against #C36 anti #sexworker Bill but got stuck in cmtee instead.

 

Still haven't found a press release on the topic from NDP.  

 

Pondering

Arthur Cramer wrote:

Pondering, WHATEVER!

The CF hds been promoting women to Command positions and Senior Ranks, at a serious and deliberate rate long before it was fashionable to do so in either Civil Serive, NGO, or Private Industry circles. I was, and remain, very proud of this and always supported it, even though it likely affected my career progression. Just as with everything else  you have posted, you display a complete and continued, willingness to arrognatly comment on things about which you know nothing. I am not surprised.

More deliberate ontuseness regarding my comments about Israel. My point is that unlike you, I am able to realize that just because I am what I am, that doesn't mean that fact, that accident of birth, makes me singularly qualifed to pass judgement. In your case, you think, soley, because of your gender, you must be considered the authority. All that shows is you know your argument is weak.

And I stand by what I said; where do "Progressive Women", get off telling Professional Sex Workers what is best for them? Matriarchy is no better then Patriarchy. They DON'T WANT YOU, PONDERING, telling them what is best for them. Got it?

Seriously, try to really start paying attention.

Feminists disagreements with each other are nothing like the disagreements between Palestinians and Jews. Your simplistic revelation supports "right to work" legislation because union workers are forcing their views on other workers. 

What you did in the military simply has nothing at all to do with this topic. 

You don't think Swedish feminists are progressive because they are abolitionists. That's fine I am not going to waste time on the obvious. 

Ever since I said that I perceive this board as leftest rather than progressive, and said I will vote Trudeau in 2015, you have been having fits trying to prove I am not progressive. I find rabble more progressive, in the sense that I understand the term, because rabble has a much broader range of views. Babble as a whole does not have a progressive feel about it (to me) because fewer views are tolerated. The board is a subset of the progressive community. It felt, and still feels narrower to me than rabble. Apparently you have taken deep offense to this.

I am going to do is keep a permalink to this post so every time you get on my back about not being progressive I can just link to this as my response to your vendetta against me. 

fortunate

Pondering, is there anyone you haven't attacked, insulted, belittled, or argued with yet that has posted in this topic?  If not, could you possibly cut, delete and/or edit out all of it from here and start a new topic just for your rebuttals?   

Unless you have info about what Progressive Feminist Liberals have to say about C-36 or related to the topic, (and to the OP i know i've gone off topic again here, but I am going to close on topic

http://www.macleans.ca/politics/c-36-and-the-prostitution-debate/

While Independent MP Brent Rathgeber has his doubts and Conservative MP Brad Trost considers the government’s prostitution legislation to be “illogical,” the Liberal caucus has apparently deemed the bill unsupportable. Here is the statement issued just now by the Liberal leader’s office.

The Liberal Party of Canada is opposing C-36. We have serious concerns that this legislation fails to comply with the Charter of Rights and Freedoms and the requirements outlined by the Supreme Court of Canada in the Bedford decision. We are also concerned that this legislation fails to adequately protect the health and safety of vulnerable people, particularly women.

We have called on the government to produce evidence of the legal opinions they sought in drafting this legislation; the Conservatives continue to refuse to release this information.

We also note that the government has refused to submit this legislation as a reference to the Supreme Court of Canada in order to determine its constitutional validity.

 

 

Not sure how the parties will react to this announcement here:  http://www.scribd.com/doc/229408241/Letter-by-Prof-Alan-Young-Prostitution-Legislation    where Alan Young points out that since the SCC has a ton of evidence now, due to the Bedford challenge, any new legislation that is sent to them is likely to be returned with a ruling within months, not a long time at all.   he also mentions the likelihood of another constitutional challenge :)

 

 

 

 

 

 

Unionist

All talk of reference to the Supreme Court is a copout.

If Harper decided to re-criminalize abortion or contraception or ban same-sex marriage, would the same cowardly politicians say, "let's refer it to the SCC before you hear our opinion"?

Should the purchase of sexual services be a criminal offence, in and of itself? Seems like a simple question. Peter Mackay and his party have boldly said "YES". The cowardly opposition parties should be asked repeatedly, until they answer.

 

Pondering

fortunate wrote:
fortunate wrote:
Pondering, is there anyone you haven't attacked, insulted, belittled, or argued with yet that has posted in this topic?  If not, could you possibly cut, delete and/or edit out all of it from here and start a new topic just for your rebuttals?   

I didn't start it but I am finishing it and you're one to talk. 

I will believe the NDP and the Liberals when they specify what they don't like about the bill or what they support as an alternative. Right now all they are doing is grandstanding. In the end they are going to say something stupid like not enough supports were put in. 

Alan Young can say what he likes, the previous judgement was based on the purpose of the laws being nuisance control and prostitution itself being legal. Neither of those conditions is true under the new law. The law is clearly designed to deter prostitution and it is no longer legal anywhere. The law declares prostitution itself to be inherently dangerous not just a nuisance. In the judgement the judge said that the violence comes from pimps and johns and said something to the effect that prostitution is risky. 

Alan Young is going to present all his documents again, but his case is no longer being heard under the nuisance laws and his documents didn't prove that prostitution was safe or that it would be safe if it were legal. 

Many of the statements in the judgement emphasized that prostitution was legal and the judge specifically stated they were not taking a stand on whether or not prostitution should be legal.  

Women are allowed to work indoors and hire guards etc., family is protected.They will not be arrested for solicitation unless they are where minors can be expected to be present. They will not be arrested for advertising their own services. 

Young can argue that the outcomes will be the same but the new laws are very different on multiple levels. Reading the judgement now that the new law is out is much more interesting. It explains how the legistlative goal is tested against three well-defined legal concepts.  They are aribtariness, overbreath, and disproportion which are tested against the goals of each aspect of the legislation individually. 

The judges reasoning weighed heavily on the laws being designed to prevent the nuisance of prostitution, not to prevent prostitution itself. The crown argued that in effect it did deter prostitution. The judge rejected it stating that the outcome didn't alter the intent of the laws. 

The intent of the new law could not be more different. The criminalizing of all johns and significant penalties will deter prostitution. 

Some are arguing that because selling isn't criminalized prostitution is legal but victims are never criminalized and that is how the preamble situations prostitutes, as victims not perpetrators. 

Because the goal is to prevent prostitution (which is inherently exploitative and dangerous) it's difficult to claim that any of the measures are arbitrary, overbroad, or disproportionate. The goal is to protect women from exploitation and danger through preventing as much prostitution as is possible. 

The government need not prove that prostitution harms  all or most women, only that it seriously harms many women. 

I wish the Cons would sent it to the SCC so we could get a ruling on it. They may be refusing in order to sucker the NDP and Libs into declaring themselves against a specific measure. The Cons could twist it into an accusation that the NDP and/or the Libs support prostitution.

So, the NDP and the Libs are grandstanding and being outraged and demanding that it be sent to the SCC but they aren't saying anything specific and they won't. 

Both parties have had plenty of time to look at the bill and come up with enough solid critique to let us know where they stand on the various components of the Bill. 

I wonder if Harper will call their bluff. 

 

 

 

mark_alfred

fortunate wrote:

So i do finally have a confirmed story with the Liberal press release (previously what i had was a wikileaksporn site which i edited out as possibly inappropriate lol)

 

http://www.macleans.ca/politics/c-36-and-the-prostitution-debate/

 

Thanks for the link, fortunate.  That's good news.  Also found a letter from Alan Young there to Attorney General Peter Gordon MacKay.  He argues that the government should submit the bill to the Supreme Court to get their opinion.

Alan Young wrote:
As you know, the Bedford challenge took over six years to reach a final determination, and it would be a great disservice to the public to place the burden on sex workers and their lawyers to initiate another costly and protracted constitutional challenge.  Pursuant to s. 53 of the Supreme Court of Canada Act, this Government can refer the issue of the constitutional validiity of this proposed legislation directly to the Supreme Court of Canada.

Seems like a fair request to me.  I'm going to write the Attorney General myself and also ask for this.

Arthur Cramer Arthur Cramer's picture

Pondering wrote:

Arthur Cramer wrote:

Pondering, WHATEVER!

The CF hds been promoting women to Command positions and Senior Ranks, at a serious and deliberate rate long before it was fashionable to do so in either Civil Serive, NGO, or Private Industry circles. I was, and remain, very proud of this and always supported it, even though it likely affected my career progression. Just as with everything else  you have posted, you display a complete and continued, willingness to arrognatly comment on things about which you know nothing. I am not surprised.

More deliberate ontuseness regarding my comments about Israel. My point is that unlike you, I am able to realize that just because I am what I am, that doesn't mean that fact, that accident of birth, makes me singularly qualifed to pass judgement. In your case, you think, soley, because of your gender, you must be considered the authority. All that shows is you know your argument is weak.

And I stand by what I said; where do "Progressive Women", get off telling Professional Sex Workers what is best for them? Matriarchy is no better then Patriarchy. They DON'T WANT YOU, PONDERING, telling them what is best for them. Got it?

Seriously, try to really start paying attention.

Feminists disagreements with each other are nothing like the disagreements between Palestinians and Jews. Your simplistic revelation supports "right to work" legislation because union workers are forcing their views on other workers. 

What you did in the military simply has nothing at all to do with this topic. 

You don't think Swedish feminists are progressive because they are abolitionists. That's fine I am not going to waste time on the obvious. 

Ever since I said that I perceive this board as leftest rather than progressive, and said I will vote Trudeau in 2015, you have been having fits trying to prove I am not progressive. I find rabble more progressive, in the sense that I understand the term, because rabble has a much broader range of views. Babble as a whole does not have a progressive feel about it (to me) because fewer views are tolerated. The board is a subset of the progressive community. It felt, and still feels narrower to me than rabble. Apparently you have taken deep offense to this.

I am going to do is keep a permalink to this post so every time you get on my back about not being progressive I can just link to this as my response to your vendetta against me. 

Pondering, seriously, sigh.

 

 

mark_alfred

On June 12, the Cons put forward a motion allowing for only five hours of debate on bill C-36 at the 2nd reading stage.  All the opposition voted against this (NDP, Libs, Bloc, Green) and all the Cons voted for it.  link  So, I'm going to assume that all opposition parties (Green, Bloc, NDP, Libs) will vote against this bill (I think it's been referred to committee now).  There had been a battle to get it referred to the Supreme Court for an assessment (as has been done with other constitutionally questionable propositions like the Senate or Marc Nadon).  Government not willing.

Arthur Cramer Arthur Cramer's picture

Pondering, http://www.canadianprogressiveworld.com/2013/04/23/betrayal-trudeau-and-the-liberals-voted-for-harpers-sellout-fipa/#.U5wI3tSqhWI.

The Council of Candains say Trudeau sold out Canada to FIPA too; or you smarter then Maude Barlow as well? You probably think you are.

Pondering

mark_alfred wrote:

On June 12, the Cons put forward a motion allowing for only five hours of debate on bill C-36 at the 2nd reading stage.  All the opposition voted against this (NDP, Libs, Bloc, Green) and all the Cons voted for it.  link  So, I'm going to assume that all opposition parties (Green, Bloc, NDP, Libs) will vote against this bill (I think it's been referred to committee now).  There had been a battle to get it referred to the Supreme Court for an assessment (as has been done with other constitutionally questionable propositions like the Senate or Marc Nadon).  Government not willing.

I agree. The Cons are going to push this through. When the 2015 election rolls around they are going to say that they will let challenges play out in front of the Supreme Court before taking a position on what they would do. 

 

fortunate

Unionist wrote:

All talk of reference to the Supreme Court is a copout.

If Harper decided to re-criminalize abortion or contraception or ban same-sex marriage, would the same cowardly politicians say, "let's refer it to the SCC before you hear our opinion"?

Should the purchase of sexual services be a criminal offence, in and of itself? Seems like a simple question. Peter Mackay and his party have boldly said "YES". The cowardly opposition parties should be asked repeatedly, until they answer.

 

 

Did you or someone already post this?    https://openparliament.ca/bills/41-2/C-36/   The house debate transcript for the 2nd reading.  May give a better view of which party members said what, as to where their party is standing?

 

One of the very first comments is in regards to the time limit for debate, some great questions:

Françoise Boivin Gatineau, QC

Mr. Speaker, what a surprise. This is, what, the 72nd time? It is tempting to repeat the arguments we have been making since the first time the government moved a time allocation motion. This time, the motion is on Bill C-36, which was meant to be a response to the Supreme Court's ruling on certain sections of the Criminal Code.

However, I do not get the impression that this motion is meant to silence the opposition. It seems as though it is meant to hide the debate from the Conservatives' own base. That is what I would like to ask the minister.

Yesterday I read a rather interesting report after the Conservative caucus meeting. It appeared to be saying that the government's strategy was not clear. The Conservatives themselves are divided. Some support decriminalization, some support outright prohibition, and some are not happy with the government's decision because what it is doing is not clear. The government seems to want to hide things and speed up the debate, keep it under the radar and get the committee work done in the summer, when everyone is gone.

This is my question for the minister. Was this time allocation motion moved not to prevent the opposition from speaking, but to prevent his own colleagues from speaking to this bill?

 

 

 

Pondering

Arthur Cramer wrote:

Pondering, http://www.canadianprogressiveworld.com/2013/04/23/betrayal-trudeau-and-the-liberals-voted-for-harpers-sellout-fipa/#.U5wI3tSqhWI.

The Council of Candains say Trudeau sold out Canada to FIPA too; or you smarter then Maude Barlow as well? You probably think you are.

Thank you for confirming my point that this is a personal vendetta trying to prove I'm not progressive rather than a conversation about how the parties will react to Bill C 36.

Mórríghain

Unionist wrote:

All talk of reference to the Supreme Court is a copout.

If Harper decided to re-criminalize abortion or contraception or ban same-sex marriage, would the same cowardly politicians say, "let's refer it to the SCC before you hear our opinion"?

Should the purchase of sexual services be a criminal offence, in and of itself? Seems like a simple question. Peter Mackay and his party have boldly said "YES". The cowardly opposition parties should be asked repeatedly, until they answer.

Prostitution and its sheaf of laws are millstones to politicians. There are no easy, clear cut answers available to any of them and no real gain to be made regardless of the tack each party takes, twas no wonder that prior to the Supreme Court decision the parties were all content to let bad laws lie.

MacKay must appear bold and confident that C36 will pass, for the optics if for no other reason, and it likely will thanks to his government's majority. Asking Peter to have the SCC vet his bill is silly, why should he? The role of the Supremes is not to proofread proposed legislation but to rule on points of law. If someone wishes to challenge C36's constitutionality after the bill becomes law I'm sure they'll be given the opportunity. I just hope that if anyone does they'll consider all the possible outcomes of their venture.

 

fortunate

In the transcript, the ones opposing have multiple anecdotal examples they bring up, in one case Garrison will refer to PEERS and their 450 members.  Boivin refers to maggies, Stella, and PIVOT who represent even more.    At least 3 times now, I am on pg 4 reading thru, the Cons have brought up one single name, from an article posted that day supporting C-36 and how she feels like she would have been saved had it been in place (which is  unlikely, because she had an addiction that needed to be dealt with, the sex work was a byproduct of that).

 

  Plus she's been in the media for a couple of years now, her story repeated gets a little tweak each time.  2 years ago, she says a client helped her out of the biz.  (which doesn't that tell us that clients are not all evil pervert predators, and often the first line of reporting abusive situations?)    Now more recent stories after C-36 and the push to demonize clients, he is painted in less complimentary ways.   Still helped her out of the biz, now his motives are suspect.    

Also her story is clear:  she went right into indoor work, at a massage parlour, and also ran one.   Dechert's comments when he brings up her 'tragic' story is that she worked those 17 years on the street.      An honest mistake, or an attempt to mislead? 

 

mark_alfred

Mórríghain wrote:

Unionist wrote:

All talk of reference to the Supreme Court is a copout.

If Harper decided to re-criminalize abortion or contraception or ban same-sex marriage, would the same cowardly politicians say, "let's refer it to the SCC before you hear our opinion"?

Should the purchase of sexual services be a criminal offence, in and of itself? Seems like a simple question. Peter Mackay and his party have boldly said "YES". The cowardly opposition parties should be asked repeatedly, until they answer.

Prostitution and its sheaf of laws are millstones to politicians. There are no easy, clear cut answers available to any of them and no real gain to be made regardless of the tack each party takes, twas no wonder that prior to the Supreme Court decision the parties were all content to let bad laws lie.

MacKay must appear bold and confident that C36 will pass, for the optics if for no other reason, and it likely will thanks to his government's majority. Asking Peter to have the SCC vet his bill is silly, why should he? The role of the Supremes is not to proofread proposed legislation but to rule on points of law. If someone wishes to challenge C36's constitutionality after the bill becomes law I'm sure they'll be given the opportunity. I just hope that if anyone does they'll consider all the possible outcomes of their venture.

I can't agree with you there.  The government would not, as you said, have been drafting these replacement laws had it not been for the Supreme Court.  The Court could have immediately struck down the three laws, but instead gave the respondent (the government) a year before the decision comes into place.  Thus this should be considered a continuation of the process of resolving the case, not as something completely separate. 

The government was found to have laws that breached the Charter rights of the applicants.  And the government was given a year to fix that.  The government responding to this case by rushing this replacement law in that many, particularly the applicant (whose cousel wrote a letter requesting the new law be vetted), feel may also be a breach of the applicants' Charter rights, is a cynical abuse of power.  "If someone wishes to challenge C36's constitutionality after the bill becomes law I'm sure they'll be given the opportunity."  Sure, then six years later in court, potentially the law could be found to be invalid, and then they could be ordered to come up with a new law, and they could push in another variant and then, six years later....  That's not right.  The Court told the government that the three laws were not right, and gave them a year to fix it.  They're told to do it right, and they have the capacity to have it vetted.  They should do that.  Otherwise it's just the government being abusive and out of sync with natural justice.  Government has far more resources, and likely could play this out in perpetuity if they chose. 

Arthur Cramer Arthur Cramer's picture

Pondering, how about this? http://www.ctvnews.ca/canada/sex-workers-rally-across-canada-to-protest-prostitution-legislation-1.1869002

Do you "Progressive Women", still think you know what's best for Sex Workers? If you are anything to go by, the answer is yes.

Well? Or I am just being a Misogynist again?

Pondering

mark_alfred wrote:
The Court told the government that the three laws were not right, and gave them a year to fix it.  They're told to do it right, and they have the capacity to have it vetted.  They should do that.

The Court made no suggestions concerning their vetting of the new laws and I found the ruling very clear:

This too was part of the judgement:

[2]                              These appeals and the cross-appeal are not about whether prostitution should be legal or not.  They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.  I conclude that they do not.  I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.

The judges specifically left the door open for prostitution to be illegal. They were striking down the existing laws that's all. 

Sex Workers are claiming that criminalizing johns leads to the same dangers, which is the same thing as saying steet prostitution has to be legal. Young is trying to claim that the documents already submitted prove that it should be legal which is clearly not true. That is an entirely different argument. 

As expected, the bill has already experienced push-back, and there is the possibility of a court challenge -- because let's be honest, no matter what legislation was presented, pro-sex work groups will settle for nothing less than full decriminalization.

However, the three things that Bedford requested at the Supreme Court level have been granted -- a person can now sell sex out of an indoor space (the bawdy house provision was struck down), they can hire security and accountants (the living off the avails provision was struck down), and they can communicate for the purposes of sex as long as it's not in an area where children could reasonably be expected to be present. They essentially got what they asked for.

 <http://www.huffingtonpost.ca/michelle-brock/sex-work-canada_b_5475240.html

 

She makes some very strong points. The courts did not order parliament to facilitate prostitution. They specifically stated it could be made illegal. The Charter test was against the old nuisance laws. These laws have completely different objectives and they are sharply aimed at curtailing demand. 

Except for the minors clause, which depends on judicial interpretation, short of making prostitution legal they did a good job of designing one that makes it illegal, which the courts explicitly said they could do. 

 

Pondering

Arthur Cramer wrote:
Pondering, how about this? http://www.ctvnews.ca/canada/sex-workers-rally-across-canada-to-protest-prostitution-legislation-1.1869002

Do you "Progressive Women", still think you know what's best for Sex Workers? If you are anything to go by, the answer is yes.

Well? Or I am just being a Misogynist again?

Knock yourself out playing gotcha. Call it progressive or not, as you prefer. We have a difference of opinion concerning the increased harm prostitution causes when it is legitimized as it has been in Germany and other European countries. That argument has been repeated endlessly. I'm here to discuss the parties positions and the constitutionality of the law not rehash the rest. 

mark_alfred

Pondering wrote:

mark_alfred wrote:
The Court told the government that the three laws were not right, and gave them a year to fix it.  They're told to do it right, and they have the capacity to have it vetted.  They should do that.

The Court made no suggestions concerning their vetting of the new laws

But the government does legally have this option, and the applicant requested this.  The government has a pile of money and resources which the applicants do not have, so declaring that the applicant can just put in another challenge is a potential breach of natural justice, I feel.  If the government is confident in the constitutional validity of Bill C-36 and legally has the option to have it vetted, then why not do that?  Best to resolve the various questions quickly and efficiently, rather than the government abusing its position of having greater money and resources for its own benefit.

Arthur Cramer Arthur Cramer's picture

Pondering wrote:

Arthur Cramer wrote:

Pondering, http://www.canadianprogressiveworld.com/2013/04/23/betrayal-trudeau-and-the-liberals-voted-for-harpers-sellout-fipa/#.U5wI3tSqhWI.

The Council of Candains say Trudeau sold out Canada to FIPA too; or you smarter then Maude Barlow as well? You probably think you are.

Thank you for confirming my point that this is a personal vendetta trying to prove I'm not progressive rather than a conversation about how the parties will react to Bill C 36.

Pondering, I don't remember posting that in here. If I did, wrong thread. Nope, I was trying to show on that point, that Trudeau is a sell out on FIPA and that any one calling themselves "progressive" woudln't vote for that guy. Even Maude Barlow agrees. But OK, you just go right ahead. Nothing said to you seems to make any kind of difference anyway. You are an ideologue. And what about my post about Mcleans and Sex Workers. Do you know better them then too? Wait, I already know the answer, of course you do; you're a "Progressive".

Arthur Cramer Arthur Cramer's picture

Pondering wrote:

Arthur Cramer wrote:
Pondering, how about this? http://www.ctvnews.ca/canada/sex-workers-rally-across-canada-to-protest-prostitution-legislation-1.1869002

Do you "Progressive Women", still think you know what's best for Sex Workers? If you are anything to go by, the answer is yes.

Well? Or I am just being a Misogynist again?

Knock yourself out playing gotcha. Call it progressive or not, as you prefer. We have a difference of opinion concerning the increased harm prostitution causes when it is legitimized as it has been in Germany and other European countries. That argument has been repeated endlessly. I'm here to discuss the parties positions and the constitutionality of the law not rehash the rest. 

Its not "a difference of opinion". You are so smug Pondering. Sex workers DON'T WANT your help. Pay attention!

fortunate

It's not possible to debate on facts with Pondering, AC, don't beat yourself up for trying.    Even now she is saying that the SCC 'explicitly' told the govt to go and make prostitution illegal.   There nothing in the bolded statement or anything else that says that.  Had the SCC explicitly said that, then C-36 would simply be laid out:   prostitution is illegal, done.    

They removed 3 laws, out of a total of about 30, in the criminal code.  THREE.   Everyone needs to get a grip, there is no lawlessness right now, and there won't be lawlessness should C-36 not pass, and there won't be lawlessness if the govt had done nothing new with legislation.  There are plenty of laws.    Making public solicitation a criminal offense is not the same thing as making prostitution illegal.   Making solicitation near a high school a criminal offense is NOT the same thing as making prostitution illegal.    In any case, the reference to working near a school (street work) only affects the sex worker, and leaves her open to criminal charges for that reason, it still does not make the act of prostitution itself illegal.  

Pondering throws around words like legal and illegal, explicit and so on, then contradicts herself within the same posts.    The judges didn't specifically leave the door open to allow the govt to make prostitution legal or illegal, they specifically said that this proceeding wasn't about that issue.    That isn't the same thing as explicitly saying to go out and make it all illegal.  

i would think that anyone reading the actual comments, and seeing the UNANIMOUS vote to overturn those three laws could see what opinion the judges have about sex work, and it isn't explicitly telling the govt to make it illegal.   They've made rulings based on the charter rights, and the idea that the overturned laws endangered sex workers.     I highly doubt that they are in any disagreement that making prostitution completely illegal would further endanger sex workers by making those same working conditions problematic.   

At the risk of sounding condescending, i think maybe the discussion of this should leave out what people think they are reading into the SCC decision and just stick to comments about what is actually there.    

 

Mórríghain

mark_alfred wrote:
I can't agree with you there.  The government would not, as you said, have been drafting these replacement laws had it not been for the Supreme Court.  The Court could have immediately struck down the three laws, but instead gave the respondent (the government) a year before the decision comes into place.  Thus this should be considered a continuation of the process of resolving the case, not as something completely separate. 

The government was found to have laws that breached the Charter rights of the applicants.  And the government was given a year to fix that.  The government responding to this case by rushing this replacement law in that many, particularly the applicant (whose cousel wrote a letter requesting the new law be vetted), feel may also be a breach of the applicants' Charter rights, is a cynical abuse of power.  "If someone wishes to challenge C36's constitutionality after the bill becomes law I'm sure they'll be given the opportunity."  Sure, then six years later in court, potentially the law could be found to be invalid, and then they could be ordered to come up with a new law, and they could push in another variant and then, six years later....  That's not right.  The Court told the government that the three laws were not right, and gave them a year to fix it.  They're told to do it right, and they have the capacity to have it vetted.  They should do that.  Otherwise it's just the government being abusive and out of sync with natural justice.  Government has far more resources, and likely could play this out in perpetuity if they chose.

You say C36 should be considered a continuation of the process but it seems MacKay felt he could cut loose and go his own way. The government’s response to the Supreme Court decision may indeed be a cynical abuse of power but so what. Our current crop of feds have shown that they are able and willing to abuse their power; why should they treat the prostitution issue, and the folk affected, with a degree of gentility? And yes, the feds may force opponents of C36 to go through the entire constitutional challenge song-and-dance again, in fact I believe that is precisely what they are doing. Hard core opponents will have to weigh their efforts against the possible outcomes (something the previous challengers did not do) and casual opponents will tire of the issue and move on.

Prostitution was never a primary issue for our current government but the cons know that they may reap small political gains from their various bases by adopting a hard law-and-order approach, after all even some moderates consider prostitution a blight, a nuisance, or a form of violence against women (or all three). On the other hand the feds stood to gain nothing by moving closer to decriminalization rather than away from it. None of Harper’s opponents would have changed their hearts if MacKay had presented a soft bill.

 

Pondering

Arthur Cramer wrote:
Its not "a difference of opinion". You are so smug Pondering. Sex workers DON'T WANT your help. Pay attention!

The debate you are trying to have is over. The new laws exist. If I call them up tomorrow and say "scrap it, I changed my mind" they won't listen to me. 

The question now is the validity of C 36. 

Pondering

fortunate wrote:

Even now she is saying that the SCC 'explicitly' told the govt to go and make prostitution illegal.   There nothing in the bolded statement or anything else that says that.  Had the SCC explicitly said that, then C-36 would simply be laid out:   prostitution is illegal, done.  

No I didn't say that. I QUOTED the SCC judgement so people could judge my interpretation for themselves. 

"

[2]                              These appeals and the cross-appeal are not about whether prostitution should be legal or not.  They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.  I conclude that they do not.  I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.

That is what the SCC said, not me.  Read the bolded part above very carefully. It doesn't mean the government MUST or MUST NOT make prostitution illegal. It leaves the choice up to parliament. 

So, the SCC left the door open for the government to make prostitution illlegal IF that is what parliament decides OR leave it legal but create a new framework of laws OR do nothing. The SCC limited their ruling to the three provisions that were struck down. The court did not want to send the message that because they struck those laws down that parliament was obligated to legitimize prostitution. So, they made it clear that their judgement was not about whether or not prostitution should be legal or not. 

fortunate wrote:
Everyone needs to get a grip, there is no lawlessness right now, and there won't be lawlessness should C-36 not pass, and there won't be lawlessness if the govt had done nothing new with legislation. 

Bill C 36 will pass because the Conservatives have a majority. No one can stop them from passing Bill C 36. No one can force them to put it before the SCC prior to passing it. 

fortunate wrote:
I highly doubt that they are in any disagreement that making prostitution completely illegal would further endanger sex workers by making those same working conditions problematic.   

At the risk of sounding condescending, i think maybe the discussion of this should leave out what people think they are reading into the SCC decision and just stick to comments about what is actually there.

You can't sound condescending when your own words illustrate that you either didn't read or didn't understand the judgement or how the laws were tested against specific aspects of the constitution. 

I would very much like to read some specifics from the lawyers saying it will be struck down. Which provisions are they referring to? 

The lawyers seem to be claiming that parliament can't make prostitution illegal through criminalizing buyers because it creates the same conditions but it doesn't and the SCC stated explicity that parliament has the option of making prostitution illegal IF it chooses to.

 

 

 

 

Michael Moriarity Michael Moriarity's picture

Pondering wrote:

 I QUOTED the SCC judgement so people could judge my interpretation for themselves. 

"

[2]                              These appeals and the cross-appeal are not about whether prostitution should be legal or not.  They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.  I conclude that they do not.  I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.

<snip>

The lawyers seem to be claiming that parliament can't make prostitution illegal through criminalizing buyers because it creates the same conditions but it doesn't and the SCC stated explicity that parliament has the option of making prostitution illegal IF it chooses to.

First, as a long-ago lawyer, all of whose knowledge of law has gradually oozed out of his ears, I am quite impressed by your logical analysis of this judgment. I have been too lazy to read it myself, or I might have a more intelligent comment. However, I think there is an error in the conclusion you make here.

While the words you quote clearly say that the court is not deciding that it is beyond the power of parliament to make prostitution illegal, it is also not saying that such a law is within parliament's power to enact. It is merely following the custom of common law courts to decide only the issues that are directly presented by the case before it.

It is still quite possible that the same court, if asked to decide a case where the issue was squarely whether or not parliament may in any way make prostitution illegal, might decide that it may not.

 

 

vincentL311

Pondering wrote:

 

The lawyers seem to be claiming that parliament can't make prostitution illegal through criminalizing buyers because it creates the same conditions but it doesn't and the SCC stated explicity that parliament has the option of making prostitution illegal IF it chooses to.

 

I guess this will be one of the important points when this bill is challenged in court. The Government will claim that Prostitution is now illegal and the conditions in the Bedford case no longer apply.

The sex worker advocates can claim though that nothing has changed from the point of view of the sex worker, they are still engaged in what is a legal activity for them and the Government is deliberately putting them in more danger by criminalizing their clients.

It remains to be seen which argument the court will accept.

vincentL311

double post

Pondering

vincentL311 wrote:
I guess this will be one of the important points when this bill is challenged in court. The Government will claim that Prostitution is now illegal and the conditions in the Bedford case no longer apply.

The sex worker advocates can claim though that nothing has changed from the point of view of the sex worker, they are still engaged in what is a legal activity for them and the Government is deliberately putting them in more danger by criminalizing their clients.

It remains to be seen which argument the court will accept.

Yes, but we can get much farther into than that. 

Once I read the judgement and C 36 a whole bunch of times. I started to understand what the important bits are (in my opinion of course) that created the logical arguments. I had to skim it a bunch of times to get a feel for the structure and realize what I could skip and where the key points were. This is the first time I have ever read anything legal this closely and it is actually really interesting. It is mainly written in accessible language and they explain their reasoning in detail point by point so you can follow their logic. It is very cleanly laid out, elegant even. Personally I found it fascinating. 

Arthur Cramer Arthur Cramer's picture

Pondering wrote:

Arthur Cramer wrote:
Its not "a difference of opinion". You are so smug Pondering. Sex workers DON'T WANT your help. Pay attention!

The debate you are trying to have is over. The new laws exist. If I call them up tomorrow and say "scrap it, I changed my mind" they won't listen to me. 

The question now is the validity of C 36. 

I don't even know you and I were debating, My one point is that you have spoken to me in a way that says you know best and I should just shut the hell up. This by the way, is also what you seem to feel is the right response to Sex Workers. My whole issue with you is that "Progressive Women", according to you think the Nordic Model is best, and the hell with what Sex Workers say they want.

Again, why is that OK? You as a women wouldn't want a man to tell you what your opinon should be on abortion, but its OK for you to dictate. Bottom line, I trust people to make decisions for themselves; you, don't seem to.

fortunate

i am not going to debate with you pondering when you prove my point by denying what you said while quoting what you said lol.

 

I am not convinced that skipping and skimming bits you don't find compelling to read a good way to study this particular bill.  I think, given that you are not a lawyer, that perhaps allow the lawyers here to isolate the key points, and illustrate to you what the 'implications' (as opposed to explications) are should the bill pass intact.  (which btw, not even Joy Smith wants this bill as it is right now to pass.   Just because they present the bill this way, doesn't mean that changes cannot or will not be made.   Keep that in mind with your analysis, as now the co-author of this mess is asking already for changes to be made.)

I suggest you read this with both eyes,  and skim and scan later, you can always ignore the bits that contradict what you want the bill to accomplish.  

http://www.pivotlegal.org/the_new_sex_work_legislation_explained

 

Katrina Pacey works with the marginalized street workers, primarily.  Their concerns are her concerns.   If anyone wants to protect and stand up for what they want and need, it is PIVOT legal society.   Arguing that C-36 will help them is like telling them they don't matter, because they are the ones saying that they need something else.   Panel discussion here:

  http://www.law.utoronto.ca/news/after-bedford-v-canada-panel-draws-packed-crowd-and-protesters

 

Criminalization of this activity is patriarchy at it's best.   Sex workers  are primarily women, and for many of them, doing this work eliminates any dependence on having a traditional husband wife relationship for her to be dependent on.  It eliminates her working for minimum wage, in the majority of cases (90% of sex workers work indoors, independently or thru massage parlours and agencies)   They can have a better life for themselves with this higher income, and for their families.    Living and working independently of spousal support has always threatened patriarchal values, imo, and accounts for what over time were draconian laws against it.   Remember, many laws in some countries came before women had any significant role in legal proceedings.    

http://rabble.ca/columnists/2014/04/patriarchal-values-dominate-sex-work-debate

The Swedish law is strongly backed by a segment of feminists whom sex workers call "radical feminists" because of their stance against pornography, sex work, transsexuality and anything else that doesn't conform to a vanilla vision of sex. Despite being feminists, their views are closely aligned with those of right-wing conservatives and Christian fundamentalists, which should set off alarm bells in the mind of every thinking person. The right-wing religious contingent longs for a return to tradition and sexually chaste women who save themselves for marriage. They espouse patriarchal ideals where a woman's place is in the home with children, but is that view really much different from the one in which women who choose to do sex work must be punished for it?

I believe that both views are rooted in antipathy to free sexual expression and autonomy, especially for women who dare to have sex in ways that offend moral sensibilities -- sex for pleasure in the case of the Christian Right, and sex for money in the case of prohibitionists. The belief that women need to be protected not only from others but from themselves gives radical feminists the self-appointed right to speak for sex workers and to "rescue" them,

 

Conclusion of this http://ifls.osgoode.yorku.ca/2014/02/explaining-the-appeal-of-asymmetrical-criminalization-jula-hughes-unb-vanessa-macdonnell-ottawa-karen-pearlston-unb-on-options-bedford-and-the-role-of-legal-professionals/

Treating clients as bad and sex workers as good makes it possible to maintain a clean dichotomy between victim and perpetrator. It avoids the need to talk about why so many of us so easily assume that sex work is bad. That conversation might reignite unresolved struggles over heteronormativity, heterosexuality, and the complex ways in which we live our sexual lives. It is easier to protect our own sexualities and relegate the threatening power and violence dimensions to an “other” who is separated from us by class and life circumstance.

If we want to protect vulnerable women, it is unclear why we should focus so much on sex work. Moreover, often lost in the discussion is the fact that not all sex workers are women. Some sex workers are trans and some are queer men.[43] Surely this reality should factor into our discussions and our law reform proposals. Are we sure that decriminalization will eliminate the harms associated with sex work? No. But we are convinced that criminalization is harmful.

Further, as we have argued elsewhere, we are persuaded that the Nordic Model of asymmetrical criminalization would replicate and possibly intensify the vulnerabilities recognized by the Supreme Court in Bedford.[44] Given our analysis of the constitutional context developed in the Supreme Court judgment and the evidence that the dangers to sex workers recognized in Bedford are also posed by the Nordic Model, we urge those who are concerned about sex work and sex workers to think beyond the criminal law when developing advocacy approaches.

It took decades (and a serial killer) to amass an evidentiary record that finally convinced the courts of the harms caused by the existing prostitution laws. We should not be quick to adopt a law reform agenda that replicates the harm, aids the government’s aggressive law-and-order agenda[45], and could take decades more to overturn.

Pondering

fortunate wrote:
I think, given that you are not a lawyer, that perhaps allow the lawyers here to isolate the key points, and illustrate to you what the 'implications' (as opposed to explications) are should the bill pass intact. 

Well none of the lawyers here seem to be doing that so I am exploring the reasoning of the SCC myself which everyone is free to do or not. I'm not presenting myself as a legal expert. 

fortunate wrote:
which btw, not even Joy Smith wants this bill as it is right now to pass

She wants to narrow the "where minors can reasonably be expected" clause. They may have put it in there to cause outrage so they could modify and say "see, we're reasonable". Or maybe not and they will refuse to alter it. Either way, that has no bearing on whether or not the C 36 is constitutional. 

Too much to analyze in one post so here is one point:

Provision 213: “Stopping or impeding traffic and communicating to offer or provide sexual services for consideration”

There is only one part of the Communicating provision that is different than the pre-Bedford regime. What was previously section 213(1)(c) of the Code now applies only to communicating to offer sexual services in a public place that is or is next to a place where anyone under the age of 18 could "reasonably be expected to be present." This Communicating provision is only marginally narrower than what the Court struck down in Bedford, as it captures a broad range of places where communication is prohibited. All other aspects of section 213, including stopping or impeding traffic, remain criminalized and apply to everyone. These remain summary offences.

Key Considerations: As a result of this law, street-based sex workers will be the target of law enforcement and can be arrested. They will be displaced into dangerous and isolated parts of the city where they are more likely to work alone in order to avoid police detection. Sex workers will rush to get into vehicles without taking the time to screen clients and negotiate the terms of the transaction, resulting in much greater risk of harm. Sex workers will also face barriers to police protection, as a result of their criminalization.

anyone under the age of 18 could "reasonably be expected to be present." is a major change. "reasonably" is a legal term intended to limit overbroad application of the law. 

Protecting minors from a dangerous illegal activity is probably a pretty strong argument. I would argue that the johns are already criminalized and the location of the prostitute doesn't make her less of a victim so she still shouldn't be criminalized. I don't know if that would fly or not. The law allows quite a lot in the protection of minors. I think the SCC would want to let it play out. 

What is "reasonable" will be decided through case law when arrests are made. If an arrest is made that a lawyer thinks is an over broad application of the law it will become a charter challenge. I don't think the SCC will decide in advance that police and lower courts will abuse the law by ignoring the "reasonably" modifier. 

 "stopping or impeding traffic, remain criminalized and apply to everyone."

As far as I can tell the SCC decision was limited to 213(1)(c), communicating for the purposes of. The other aspects were not overturned (as far as I can tell) so I am not suprised they didn't change it. 

"Constitutional Implications: This amounts to a version of the Communicating law in Bedford that is only marginally narrower, and defies the spirit of the judgment, which was concerned with the displacement of sex workers and blocking their ability to screen clients for safety. All that will be required for police to surveil and target sex workers is the suggestion that a person under the age of 18 can reasonably be expected to be present. This law will function in a highly similar fashion to the Communicating provision that the Bedford court struck down for creating dangerous circumstances, and it will violate section 7 of the Charter.

The decision rested on comparison to the old nuisance laws, not the new laws with the new goals as expressed in the premable and not with prostitution being illegal. Any analysis that ignores those key factors is lacking in validity. Limiting the law to where minors can reasonably be expected to be is not "marginally narrower". I don't believe the police could argue that it is reasonable to expect minors to be around traditional "strolls" at night. I don't think judges will interpret "reasonably" to mean "anywhere other than industrial parks". I don't think the SCC will presuppose that the judges of the lower courts are unable to interpret "reasonably". Case law will have to be built proving that police and judges will not take the "reasonably" provision into account. 

If the judges decide that the measure it is a way of getting around the court's judgement then they might overturn it but it is just one provision within the new laws which I think would be very rarely applied.

fortunate

PIVOTs point, missed of course, is that because 213 (1) a and b remain, there is no need to add anything regarding street work into the criminal code.    they are, in effect, double legislating for the same thing.   Adding an age requirement is an attempt to mislead, in a direction to make the public and mps believe that this goes on all the time, hookers at highschools.  It doesn't or more people would actually have been talking about it before all of this occurred.   In fact, this is not an illegal activity (you keep trying to play with the words legal and illegal again), so it isn't at all a case of keeping the children away from illegal activity. 

You could use the word 'illicit' tho, I suppose, to indicate a moral view of street workers.  

You don't think, you don't think, you don't think.  That is a common refrain from the abolitionists, however, you do NOT know.  The reason the laws were overturned was because they were intended to just keep street workers out of residential neighbourhoods, however they were USED to arrest and charge them, throw them in jail, and send them to court, in effect tho sex work is and was legal, they wanted to charge them with something anyway.   The public solicitation laws were the only way they could do that.   

What will happen, is that if people complain, police will go right back to that, and claim the street worker was near someone under 18.   Whose going to prove otherwise?  All it would take would be another sex worker nearby who happens to be under 18.   The fact that VPD has a new policy to not arrest and charge sex workers, but to do a harm reduction plan instead, doesn't mean that they won't in other cities, or that they won't be pressured by the city, who are pressured by residents, to clean up the neighbourhoods.     

Pondering

Michael Moriarity wrote:

I have been too lazy to read it myself, or I might have a more intelligent comment. However, I think there is an error in the conclusion you make here.

While the words you quote clearly say that the court is not deciding that it is beyond the power of parliament to make prostitution illegal, it is also not saying that such a law is within parliament's power to enact. It is merely following the custom of common law courts to decide only the issues that are directly presented by the case before it.

It is still quite possible that the same court, if asked to decide a case where the issue was squarely whether or not parliament may in any way make prostitution illegal, might decide that it may not.

Thank-you, and yes I agree, any new laws surrounding prostitution are open to being tested before the Supreme Court. I have read that the law is so changed that new case law will have to occur before it can be challenged.

The SCC determined that the goal of the laws was to prevent public nuisance which is key to their decision.  The government argued that it was to prevent prostitution, and in effect that is how it was working. The SCC said the effect doesn’t matter because it’s an accidental outcome, not the purpose of the laws given that prostitution itself was legal. The government couldn’t use the argument that the accidental outcome of preventing prostitution justifies the laws.

The tests of fundamental justice balance the government’s goal of preventing public nuisance against the rights of the individual to security of the person.

Again from the judgement:

 [105]                      The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal.  To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.

 So, the question is:

Are the means being used to achieve the objective fundamentally flawed? To answer the question the court first determines the objective of the law, in this case preventing public nuisance.  

The questions then become:

Is the law arbitrary with respect to achieving the legislative goal?

Is the law overbroad with respect to achieving the legislative goal?

Are the effects of the law grossly disproportionate to the legislative goal?

Yes to any one of the conditions means the law is fundamentally flawed and struck down.

The judgement is about three separate laws so each component is tested for the three conditions I listed. The fascinating part is that the SCC gives their complete reasoning for striking down each provision of the law.

The new laws will have to go through the same process if they are challenged. The SCC will determine the true purpose of the various provisions of the law. That purpose will then be tested against the 3 principles of fundamental justice: arbitrariness, over breath, and disproportion.

The new laws could also be subject to other Charter tests that I have no clue about.

I swear it is super interesting. Maybe it’s just me because I never read any of this stuff before but I don’t think so. I think the case itself is very interesting as a means through which to better understand our charter rights and why a law may or may not be legal. 

 

Pondering

mark_alfred wrote:

Thanks for sharing.  Interesting post. 

ETA:  Note, I think your original post had a quote tag missing, because when I posted this originally, my statement appeared as a quote from yourself instead.  So, I took the liberty of adding the missing quote tag ("/quote") in this post (I did a guess as to where exactly Michael stopped and you began, which may or may not be correct -- if I erred in my guess do feel free to let me know).

I'm glad you liked it. My mistake was to have an extra "quote = pondering" tag in front of what Michael said starting at:"I have been too lazy to read it myself" which is what he said. I did read it, lol.

 

 

mark_alfred

Well, I finally got around to writing the government about it.  The "s. 53 of the Supreme Court of Canada Act" reference I got from Alan Young's letter.  Anyone else who wants to take the basic format of my letter and use it yourself, do feel free to.  Or, feel free to write one of your own that's more direct and to the point.  You can find a list here of MP's contact info.  Or, see here to simply find your own MP's email address via postal code.

Quote:
Dear Honourable Joe Oliver,

I live in Lawrence-Eglinton.  Bill C-36 is a response of the government to the case of Canada (Attorney General) v. Bedford.  However, similar to the laws that Bill C-36 is replacing, I feel that Bill C-36 also potentially violates the constitutional right to security of the person of full-service sex trade workers.  So, I would like for the government to either quash Bill C-36, or to refer Bill C-36 to the Supreme Court of Canada for a determination of the constitutional validity of this proposed legislation pursuant to s. 53 of the Supreme Court of Canada Act. 

Sincerely,

mark_alfred

cc:  Honourable Prime Minister Stephen Harper, Honourable Attorney General of Canada Peter MacKay, Honourable Leader of the Opposition Tom Mulcair, Official Opposition Critic for Justice Francois Boivin.

mark_alfred

Pondering wrote:

mark_alfred wrote:

Thanks for sharing.  Interesting post. 

ETA:  Note, I think your original post had a quote tag missing, because when I posted this originally, my statement appeared as a quote from yourself instead.  So, I took the liberty of adding the missing quote tag ("/quote") in this post (I did a guess as to where exactly Michael stopped and you began, which may or may not be correct -- if I erred in my guess do feel free to let me know).

I'm glad you liked it. My mistake was to have an extra "quote = pondering" tag in front of what Michael said starting at:"I have been too lazy to read it myself" which is what he said. I did read it, lol.

 

Thanks.  Yes, I think that my "correction" ended up reversing some stuff.  Hmm.  I'll have another look.   Okay, I think I figured it out.  I think I erred initially in typing my response within a quote tag, rather than any error you made.  These damned quote tags sometimes!  Anyway, I think I've now tagged both yours and Michael's quotes correctly. 

mark_alfred

Pondering wrote:

Michael Moriarity wrote:

I have been too lazy to read it myself, or I might have a more intelligent comment. However, I think there is an error in the conclusion you make here.

While the words you quote clearly say that the court is not deciding that it is beyond the power of parliament to make prostitution illegal, it is also not saying that such a law is within parliament's power to enact. It is merely following the custom of common law courts to decide only the issues that are directly presented by the case before it.

It is still quite possible that the same court, if asked to decide a case where the issue was squarely whether or not parliament may in any way make prostitution illegal, might decide that it may not.

Thank-you, and yes I agree, any new laws surrounding prostitution are open to being tested before the Supreme Court. I have read that the law is so changed that new case law will have to occur before it can be challenged.

The SCC determined that the goal of the laws was to prevent public nuisance which is key to their decision.  The government argued that it was to prevent prostitution, and in effect that is how it was working. The SCC said the effect doesn’t matter because it’s an accidental outcome, not the purpose of the laws given that prostitution itself was legal. The government couldn’t use the argument that the accidental outcome of preventing prostitution justifies the laws.

The tests of fundamental justice balance the government’s goal of preventing public nuisance against the rights of the individual to security of the person.

Again from the judgement:

 [105]                      The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal.  To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.

 So, the question is:

Are the means being used to achieve the objective fundamentally flawed? To answer the question the court first determines the objective of the law, in this case preventing public nuisance.  

The questions then become:

Is the law arbitrary with respect to achieving the legislative goal?

Is the law overbroad with respect to achieving the legislative goal?

Are the effects of the law grossly disproportionate to the legislative goal?

Yes to any one of the conditions means the law is fundamentally flawed and struck down.

The judgement is about three separate laws so each component is tested for the three conditions I listed. The fascinating part is that the SCC gives their complete reasoning for striking down each provision of the law.

The new laws will have to go through the same process if they are challenged. The SCC will determine the true purpose of the various provisions of the law. That purpose will then be tested against the 3 principles of fundamental justice: arbitrariness, over breath, and disproportion.

The new laws could also be subject to other Charter tests that I have no clue about.

I swear it is super interesting. Maybe it’s just me because I never read any of this stuff before but I don’t think so. I think the case itself is very interesting as a means through which to better understand our charter rights and why a law may or may not be legal. 

Thanks for sharing.  Interesting post. 

ETA:  Note, I think your original post had a quote tag missing, because when I posted this originally, my statement appeared as a quote from yourself instead.  So, I took the liberty of adding the missing quote tag ("/quote") in this post (I did a guess as to where exactly Michael stopped and you began, which may or may not be correct -- if I erred in my guess do feel free to let me know).

Okay, hopefully I've got it correct now.  I think the initial error was mine and not yours.

Pondering

Here is the reasoning for striking down the Bawdy-House Prohibition.

Section 210: The Bawdy-House Prohibition

[131]                      The appellant Attorneys General argue that the object of this provision, considered alone and in conjunction with the other prohibitions, is to deter prostitution.  The record does not support this contention; on the contrary, it is clear from the legislative record that the purpose of the prohibition is to prevent community harms in the nature of nuisance. 

[132]                      There is no evidence to support a reappraisal of this purpose by Parliament.  The doctrine against shifting objectives does not permit a new object to be introduced at this point (R. v. Zundel, [1992] 2 S.C.R. 731).  On its face, the provision is only directed at in-call prostitution, and so cannot be said to aim at deterring prostitution generally.  To find that it operates with the other Criminal Code provisions to deter prostitution generally is also unwarranted, given their piecemeal evolution and patchwork construction, which leaves out-calls and prostitution itself untouched.  I therefore agree with the lower courts that the objectives of the bawdy-house provision are to combat neighbourhood disruption or disorder and to safeguard public health and safety.

The above is where the judges rejected the government's contention that the laws were intended to deter prostitution and determined that the legislative goal was to prevent a public nuisance. 

[135]                      The Court of Appeal acknowledged that empirical evidence on the subject is difficult to gather, since almost all the studies focus on street prostitution. However, it concluded that the evidence supported the application judge’s findings on gross disproportionality — in particular, the evidence of the high homicide rate among prostitutes, with the overwhelming number of victims being street prostitutes.  The Court of Appeal agreed that moving indoors amounts to a “basic safety precaution” for prostitutes, one which the bawdy-house provision makes illegal (paras. 206-7).

[136]                      In my view, this conclusion was not in error.  The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.  A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.

The point is not whether or not they would have or could have resorted to indoor work, it is that the law would prevent them from doing so for the relatively much less significant harm of community disruption.

As Michael noted "It is merely following the custom of common law courts to decide only the issues that are directly presented by the case before it."

The court rejected the government argument that the laws were to deter prostitution so the laws have not been tested against that goal. The SCC never examined the government's argument of inherent harm because it was immaterial to the judgement due to the design of the laws. 

Bill C 36 doesn't revive the Bawdy-House law. 

Pondering

 

(b)          Section 212(1)(j): Living on the Avails of Prostitution

Object of Living on the Avails

 [137]                      This Court has held, per Cory J. for the majority in Downey, that the purpose of this provision is to target pimps and the parasitic, exploitative conduct in which they engage:

 [138]                      The Attorneys General of Canada and Ontario argue that the true objective of s. 212(1)(j) is to target the commercialization of prostitution, and to promote the values of dignity and equality.  This characterization of the objective does not accord with Downey, and is not supported by the legislative record.  It must be rejected.

The SCC again rejects the government's reasoning for the purpose of the law so does not test the law against those objectives. For that reason they are able to find that:

[139]                      The courts below concluded that the living on the avails provision is overbroad insofar as it captures a number of non-exploitative relationships which are not connected to the law’s purpose. The courts below also concluded that the provision’s negative effect on the security and safety of prostitutes is grossly disproportionate to its objective of protecting prostitutes from harm. 

[145]                      Having found that the prohibition on living on the avails of prostitution is overbroad, I find it unnecessary to consider whether it is also grossly disproportionate to its object of protecting prostitutes from exploitative relationships. 

No judgement is made on the lower court's finding of gross disproportion because it is already overbroad. 

Bill C 36 excludes all non-exploitative relationships including family and receptionists and guards etc. that are earning a normal fee for their labour. 

Object of Communicating in Public for the Purposes of Prostitution

[147]                      It is clear from these reasons that the purpose of the communicating provision is not to eliminate street prostitution for its own sake, but to take prostitution “off the streets and out of public view” in order to prevent the nuisances that street prostitution can cause.  The Prostitution Reference belies the argument of the Attorneys General that Parliament’s overall objective in these provisions is to deter prostitution. 

[159]                      In sum, the Court of Appeal wrongly attributed errors in reasoning to the application judge and made a number of errors in considering gross disproportionality.  I would restore the application judge’s conclusion that s. 213(1)(c) is grossly disproportionate.  The provision’s negative impact on the safety and lives of street prostitutes is a grossly disproportionate response to the possibility of nuisance caused by street prostitution. 

So the SCC found that the Bawdy house law and the communications law are grossly disproportionate to deterring public nuisance and living off the avails is overbroad because it included people who are non-exploitative. 

None of the laws were struck down based on being arbitrary.

 

Pondering

Quote:
I am putting myself in quotes instead of the court judgement for the ease of readers. I love the notion of “instrumental rationality”. The following is not specific to prostitution. 

I just copied the paragraphs that I consider essential to understanding the reasoning of the court.

If anyone wants to read all 292 pages of the judgement to see if you can do better be my guest.

[107]                       Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” — the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151).   As Peter Hogg has explained:

The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective.

(“The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195, at p. 209 (citation omitted))

[108]                      The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils.  The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law.  The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law’s purpose and the s. 7 deprivation.

[109]                      The second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective.  The law’s impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.

[110]                      Against this background, it may be useful to elaborate on arbitrariness, overbreadth and gross disproportionality.

[111]                      Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose.  There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136).  A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests.  Thus, inChaoulli, the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.

[112]                      Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part.  At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts.  For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings.  The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

[113]                      Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others.  Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.  For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

...

[123]                      All three principles — arbitrariness, overbreadth, and gross disproportionality — compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness.  That is, they do not look to how well the law achieves its object, or to how much of the population the law benefits.  They do not consider ancillary benefits to the general population.  Furthermore, none of the principles measure the percentage of the population that is negatively impacted.  The analysis is qualitative, not quantitative.  The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

...

[127]                      By contrast, under s. 7, the claimant bears the burden of establishing that the law deprives her of life, liberty or security of the person, in a manner that is not connected to the law’s object or in a manner that is grossly disproportionate to the law’s object.  The inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy.  The inquiry into the impact on life, liberty or security of the person is not quantitative — for example, how many people are negatively impacted — but qualitative.  An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7.  To require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences on members of society as a whole, would impose the government’s s. 1 burden on claimants under s. 7.  That cannot be right.

 

Quote:
The judgement doesn’t discuss s.1 to any extent so I am confused by that part.

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