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A law with new purpose

By changing the justification for the proposed new prostitution law the government offers a response to the Bedford decision. But problems with Bill C-36 don't end there.

women walking together

The Conservative Government entered into the rare summer committee hearings on C-36 with laser-like focus, a message that wouldn’t bend, and a legal opinion that they will take to the grave.

This bill is a direct response to the Bedford decision, they said, and the Court will uphold this law.

From the short title — An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford — to the preamble, the House of Commons debate, the witnesses invited to committee, and the questions that were asked: the government is doing a full court press to sell this bill as respectful of the Canadian Charter of Rights and Freedoms.

But, many legal experts say, that just isn’t good enough.

In the four days of marathon hearings, MPs were regaled with horror stories of the sex trade by former sex workers, told of the dangerous impact of the soon-to-be-struck-down laws by current workers, and informed that the proposed changes in Bill C-36 simply do not meet the test set out in Bedford.

The hearings

Justice Minister Peter MacKay, the first to testify before committee, made it clear that Bill C-36 was virtually the only path forward for the government.

“For our government, to do nothing is not an option,” he told the committee. “Accordingly, Bill C-36 does not seek to allow or facilitate the practice of prostitution.”

But it was sex workers, past and present, who made clear to the committee how crafting legislation to clamp down on prostitution is fraught with problems.

“Criminalization breeds isolation and isolation, in turn, breeds vulnerability to violence, exploitation and abuse,” Jean McDonald, Executive Director of Maggie’s Toronto, told the committee, effectively channeling Chief Justice’s McLachlin’s reasons in Bedford.

The idea repeated time and time again that any criminal sanctions depriving sex workers’ ability to screen clients and work indoors are inherently against the principles set out by the Supreme Court.

“When we criminalize clients, we’re essentially replacing the same harms of the communicating law, in which sex workers don’t take the time to screen their clients, they can’t work in well-lit and well-populated areas, and they must work alone,” said Emily Symons, head of Prostitutes of Ottawa-Gatineau Work Educate & Resist.

Offering a countering view was Timea Nagy, founder of Walk With Me Canada Victim Services, who recounted the story of her journey to Canada. Her passport had been confiscated and she was forced to work in a massage parlour, which was little more than a dressed-up brothel. “It was indoors, it was safe,” Nagy said, and yet she still faced sexual violence.

“Prostitution is not a profession, it is an oppression,” she said.

“By criminalizing those who are exercising control over the prostituted for their own financial gain, the harm to the prostituted is recognized and validated,” said Casandra Diamond, program director at BridgeNorth.

With over 60 witnesses testifying, the conflicting realities of sex work were batted back and forth. And while there was some consensus from the lawyers who testified, even they offered some very divergent interpretations of the bill.

Leo Russomanno, who was representing the Criminal Lawyers Association, told the committee that the bill simply does not meet Charter muster. “The evidence that was heard at the application level was unanimously accepted by the Supreme Court of Canada and it is indisputable,” he says. “That evidence is unchanged with respect to Bill C-36.”

“The criminal law, in our view, is not the tool that should be used to extricate people who do not want to be in sex work,” said Josh Paterson, executive director of the B.C. Civil Liberties Association. On the constitutionality of the bill, he added: “the new provisions taken together are likely to violate the sphere of personal autonomy protected under section 7 of the Charter and the freedom of expression guaranteed in section 2(b). Further, we do not believe they will be founded rejustified under Section 1.”

But Janine Benedet, professor of law at the University of British Columbia, had a different view.

“Constitutionally, when we talk about the security of the person, the person who is criminalized by this provision is the john, the buyer, and his security of the person is not at issue here through this criminalization. He’s the source of the danger to women,” she said.

To that end, the case made by several women’s groups predicated on the idea that while Bill C-36 may run aground on section 7, it may find its saviour in section 15.

“We have a bill that makes clear right in its stated objectives that equality for women and girls is an important consideration when thinking about prostitution,” Benedet says. “That, in my view, means that equality in section 15 can no longer be ignored in the constitutional analysis.”

From a police perspective, Bill C-36 doesn’t go far enough. Calgary’s chief of police, Rick Hanson, who endorsed a criminal prohibitions on “economically benefitting from prostitution.”

The practical reality

While the broad strokes were tackled by hypotheticals, there are a few indisputable effects of the bill that critics and supporters of alike have identified as legally problematic.

The big red flag is the public communication provision.

“Bill C-36 would also achieve its goal of protecting communities by criminalizing communicating for the purposes of selling sexual services in public places where children could be exposed to this conduct,” reads a legal brief from the Department of Justice.

The exact language of the bill makes “communicating to provide sexual services” illegal “in a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.”

As Russomanno pointed out to National when the bill was tabled, “That’s anywhere but an R-rated movie, or a bar, or the liquor store.”

But MacKay shot back, saying that the definitions in Bill C-36: "we have borrowed from other sections of the Criminal Code, mainly those that protect children” and that “there is a legal definition or interpretation already in place.”

In fact, that standard appears only twice in the Criminal Code — in both circumstances, it is included in a list of possible release conditions, after an accused has been found guilty of certain sexual crimes. But they are far from being analogous to the standards set out in the bill.

The conditions in the Criminal Code give the judge the ability to forbid the convicted person from “attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.”

It does not, like MacKay suggested, apply to ‘public places’ more broadly.

Nevertheless, Justice lawyers offered some insight into how it will be interpreted.

“What matters is whether [sex workers] are soliciting in a place where there’s a reasonable expectation that a child would be present. That’s the test. It’s not whether children are actually present or not,” Senior Assistant Deputy Minister Donald Piragoff told the committee.

That, however, wasn’t the only definition that raised eyebrows. As was noted repeatedly during the hearings, there is no explanation of what constitutes a “sexual service” in the bill.

MacKay dismissed the criticism.

“The court will consider whether the service is sexual in nature and whether the purpose of providing the services are to sexually gratify the person who receives it,” MacKay said. While he had maintained that the bill would not seek to shut down strip clubs and other adult entertainment venues, he did say that C-36 would go after “the institutionalization of prostitution through commercial enterprise, such as strip clubs, massage parlours, and escort agencies, in which prostitution often takes place.”

The ban on advertising sexual services was also underlined as vague and potentially farther-reaching than advertised by the minister.

“It’s pretty clear, we think, on the face, this bill criminalizes any publication or website owner that carries such advertising,” said Paterson. “Newspapers, websites, TV, internet service providers, anyone else that carries ads are going to be prohibited from doing so.”

Offenders would be liable of an indictable offence of up to five years, or a summary conviction of up not more than 18 months in prison. There is, however, immunity granted for sex workers advertising their own services.

What isn’t clear is if the ban is superseded by the provision that limits sex workers’ ability to communicate in public.

Anne London-Weinstein, a director at the Criminal Lawyers Association, noted that the internet “arguably could be interpreted as being a place where young people are anticipated to be, and therefore would be barred as a method of advertisement.”

When asked by National, outside of committee, MacKay was clear: “anything that enables or furthers what we think is an inherently dangerous practice of prostitution will be subject to prosecution, but the courts will determine what fits that definition. But if it’s an enabling advertisement that furthers the sale and purchase of prostitution, the courts will interpret that, but the prostitutes themselves will be immune.”

What still remains unclear, and what the government will not doubt leave to the courts to decide, is just what constitutes an advertisement for a sexual service — whether the euphemisms and trade-talk so often used in print will be sufficient to avoid conviction. MacKay made it clear that they prefer to lay charges first and let the courts sort it out.

Also raising some ire in committee was the replacement for the ‘living on the avails’ provision. It stipulates that every person who is paid or employed by a sex worker is guilty of an indictable offence of up to 10 years — unless they are getting fair market value for that service, and they “did not counsel or encourage that person to provide sexual services.” It further removes the exemption if that person used violence, abused a position of trust, power, or authority, provided drugs, acted as a pimp, or worked in the context of a brothel, as well as several other more specific situations.

That complex legal regime “is nevertheless very problematic from our point of view, as it potentially places an onus on these parties to prove that they fall within these exemptions,” said Rachel Phillips, executive director of the Peers Victoria Resource Society.

Given that the law now explicitly criminalizes workers who communicate in public, Christia Big Canoe, legal advocacy director at the Aboriginal Legal Services of Toronto, says Bill C-36 fails to meet the basic tenets of the Gladue principles, which guides courts to consider non-penal solutions for Aboriginal offenders.

With Aboriginal people disproportionally represented in the sex trade, Big Canoe said, “this bill hasn’t really taken into account the acute impact it will have on over-representation of Aboriginal people if the communication clause is left in.”

Other First Nations groups supported Bill C-36 more broadly, but opposed the communication provision.

A running theme throughout the hearings was the issue of human trafficking. As many witnesses also noted, however, provisions against human trafficking have long been a part of the Criminal Code and, aside from some slight changes, the bill does not change them.

The plan

While the Bedford decision may have invited Parliament to replace the laws it deemed to be unconstitutional, giving them a year to do so, it didn’t actually leave much room for legislation.

It found the communicating and bawdy house offences — which, in effect, criminalized virtually every sex worker in Canada — to be grossly disproportionate to their legislative objectives: “to combat neighborhood disruption or disorder and to safeguard public health and safety,” as the court phrased it. Meanwhile, it found the ‘living on the avails’ provision to be overly broad, by criminalizing not just pimps, but also the families and employees of sex workers.

The court found that limitations on how sex workers could screen their clients or work in the safety of the indoors to be violations of their section 7 rights under the Charter, and unjustifiable under section 1.

As the majority court noted: “gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm.”

The court did not address violations of sex worker’s freedom of expression under section 2(b).

But it did inform Parliament that it could enact limits on prostitution, if it wanted, but that it must respect the principles laid in the decision.

Yet, in an effort to short-circuit the issues of gross disproportionality, the government has simply changed the justification for the laws. Rather than citing nuisance or societal morality as the impetus for the laws, the legislation’s preamble explains that its goal is to address “the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it.”

However, the government does not accept that the provisions that do criminalize the sex workers themselves, like the ban on communicating for sex work in public places, will be struck down. The Supreme Court, they figure, will have to defer to Parliament’s prerogative on the matter.

The government’s legal opinion on the matter, a source confirm to National, is that the court will have to respect Bill C-36 because it prescribes explicit legislative will to criminalize and abolish sex work. In Bedford, they figure, Parliament’s will was to criminalize the industry around sex work, but not the act itself.

Take, for example, the new prohibitions that make illegal all establishments that provide sexual services. On the face of it, that provision is virtually identical in its effects to the common bawdy house provisions that were declared unconstitutional by the Supreme Court. The only significant change is that Bill C-36 provides immunity to sex workers who operate out of their own homes. Even the government admits that, with changes like those, it simply looking to re-hash the same arguments from Bedford with a new legislative purpose.

But, as some legal scholars noted, the government may have created more problems for itself with this bill.

“In Bedford, one of the problems identified by the court was that you had this purpose that was kind of weak — a public nuisance purpose going up against very real harms and death to sexworkers,” said Kyle Kirkup, Trudeau Scholar at the University of Toronto School of Law. “I would argue that the constitutional problem we now see is that, even though there’s a stronger preamble in place, we’re now into the terrain of what has been called arbitrariness.”

Russomanno agreed: “in my view, this legislation is vulnerable to a challenge on the basis that it’s not only grossly disproportionate to the albeit loftier objectives, but it’s also arbitrary,” he told the committee. “In other words, the goal in no way bears any relation to the effects.”

It was on those questions that opposition Members of Parliament questioned MacKay.

“Do you think, Minister, that this bill will be returned before the Supreme Court of Canada, regardless of what this committee does?” Asked NDP justice critic Francoise Boivin.

“It’s possible,” MacKay answered. “Obviously, each new bill could be returned before the Supreme Court.”

“What measures have been taken to ensure that C-36 is consistent with the Gladue principles?” Asked Sean Casey, critic for the Liberals.

“Well, all legislation has to be consistent,” MacKay responded.

“Did you receive advice that any Charter right was actually infringed upon?” Asked NDP MP Craig Scott.

“No,” answered MacKay.

“Not even with regard to section 1?” Scott continued.

“The department would very much have gone through [the Oakes test] in each section of the bill,” said MacKay.

“In the way you’ve answered that, Minister, in order for the crucial question to be section 1, your officials would have to advise you that at least one Charter right was infringed upon,” said Scott.

“There would be risk,” admitted MacKay.

With MacKay’s testimony, one question — asked by both Casey and the press corps waiting outside — loomed:

“Have you sought outside opinion with respect to the constitutionality, or an eventual challenge, of this legislation?”

That is one question that MacKay did not answer.