The Harper government is pushing ahead with its new legislation on prostitution, Bill C-36, the dubiously titled Protection of Communities and Exploited Persons Act.
Justice Minister Peter MacKay says the bill is "likely" to survive a court challenge. Many legal experts testifying before the Senate Committee doing a "pre-study" of the Bill disagree.
C-36 is the government's response to the Supreme Court's so-called Bedford decision, which struck down the existing prostitution laws. In that unanimous decision, the Court said that the limitations on soliciting in the existing law were contrary to the guarantee in the Charter of Rights of freedom of speech. The justices added that other legal limitations on prostitution also endangered the safety of sex workers.
MacKay's response has been, for the most part, to focus on prostitutes' customers, the "johns," rather than sex workers themselves. In doing so he says he is following the so-called Nordic model, based on Swedish legislation which says selling sex is, somehow, legal, while buying it is a crime.
Lawyers and others argue this approach will not stand the test the Supreme Court established in the Bedford case, and sex workers' advocates argue it will make prostitutes' lives more, not less, dangerous.
New law will scare potential clients and create opportunities for pimps
Valerie Scott, who was one of the applicants in the Bedford case, told the Senate Legal Affairs Committee that turning "johns" into criminals will make it very hard for sex workers to screen clients and will create a situation where prostitutes will be compelled to rely on intermediaries (i.e. pimps) to carry out their business.
The only sort of clients who would be willing to risk criminal prosecution, Scott said, would not be the sort of folks you would want to encounter in a dark alley.
Some lawyers are particularly concerned that C-36 continues to make some sex workers' communication illegal, despite the Bedford decision that such restrictions are contrary to the Charter protection of freedom of speech. C-36 criminalizes sex workers' communication when carried out where children are likely to be present. This provision is too vague and too broad, a number of lawyers have argued. They say it could easily become a de facto near-total prohibition of the sort the Supreme Court threw out in the Bedford decision.
It all makes the Harper government seem disingenuous when it claims it wants to protect sex workers from violence.
Then, when you listen to some of those who support the legislation, they too can make a compelling argument.
Forced into sex trade at the age of 13
C-36's supporters include former sex workers such as Casandra Diamond, who now works to help women exit prostitution; a number of First Nations women who have been involved in the sex trade; and social service workers such as Megan Walker, who works with abused women in London, Ontario.
Contrary to what Valerie Scott and her colleagues say, these witnesses argue -- with considerable passion -- that prostitution can never be a free choice. It is, they say, by its very nature coercive and exploitative. And some buttress their argument with harrowing stories of their own initiations into sex work at very young ages, sometimes as young as 13.
Whether it is indoors or outdoors, Diamond and others say, prostitution is always dangerous, and any john, however well-screened, can turn out to be a dangerous predator.
Their view is that every effort should be made to prevent sex trafficking and other forms of coercion and that government's over-arching aim should be to help women get out of the sex trade, not to normalize it.
Defence lawyers, such as Leo Russomanno, and sex work advocates point out that the kind of harms victims such as Diamond identify could be prevented by effective government regulation, rather than the criminal law. Criminalizing any aspect of sex workers' activity only makes it harder to reach out to prostitutes, they argue -- adding that sex workers already have a "complicated" relationship with the authorities.
If that is true, reply C-36's supporters, why has that approach not seemed to work out so well in New Zealand, Germany and the Netherlands, where sex work is legal and, notionally, regulated?
Here, both sides appear to be waging a war of inconclusive statistics. It does not seem that either side has adequate comparative data to show which is more effective: the Nordic or the legalization-and-regulation model.
Near unanimity that there must be some changes to C-36
There is one point on which most on both sides do seem to agree, however.
Neither side likes the government's plan to criminalize any aspect whatsoever of sex workers' activity, even when that activity might take place in notional proximity to children. Both sides agree that such a measure, which MacKay proposes in C-36, will endanger women. As one former sex worker argued, abused and frightened prostitutes sometimes seek refuge precisely in such seemingly safe places as schoolyards.
These Senate Committee hearings are part of a "pre-study" because C-36 has not yet passed through all phases in the House of Commons.
Normally, the Senate only takes up legislation once it has been passed by the House, but the Harper Conservatives have introduced the novel practice of getting the Red Chamber to work on some bills even before the House has voted on third and final reading. They did that with the Fair Elections Act and they are doing it again with C-36.
When the House takes up the prostitution legislation again, it will be for one more round of debate before the final vote. In the meantime, the government will have a chance to consider making some amendments. Even many speaking in favour of the Bill would like to see at least some changes. It will be interesting to see if, notwithstanding such widespread concern, MacKay insists on keeping C-36 exactly as it is.
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