Prostitution Law in Canada: Will the Charter Dialogue Continue? - LawNow Magazine

Prostitution Law in Canada: Will the Charter Dialogue Continue?

Human Rights Law ColumnConstitutional law experts, such as Peter Hogg, speak about the relationship between the Supreme Court of Canada (SCC) and Parliament as a “dialogue”. Parliament passes a law, which might later be challenged as being contrary to the Canadian Charter of Rights and Freedoms (“Charter”). Often, after declaring the challenged law to be unconstitutional, the SCC will delay the effect of this declaration for several months to give Parliament the opportunity to address the constitutional deficiency, yet ensure there is not a gap in Canada’s regulation of an important activity.  This process is referred to by some constitutional scholars as the dialogue theory. This is the potential state of affairs for some of Canada’s prostitution laws in the Criminal Code. On occasion, after Parliament re-drafts and passes an amended law, there is yet another challenge where the SCC is asked to determine the constitutionality of the amended law. Often, the SCC upholds the amended law as constitutional. However, sometimes the SCC will once again send Parliament back to the drawing board. This process is referred to by some constitutional scholars as the dialogue theory. This is the potential state of affairs for some of Canada’s prostitution laws in the Criminal Code.

In December 2013, in Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court of Canada held that the provisions of the Criminal Code that dealt with keeping a bawdy house (section 210), living off the avails of prostitution (section 212(1)(j)), and communicating in public with respect to a proposed act of prostitution (section 213(1(c)) were unconstitutional. According to the SCC, these provisions put the safety and lives of prostitutes at risk by preventing them from implementing safety measures such as hiring security guards or screening potential clients. The SCC concluded that these provisions offended the Charter section 7 right to life, liberty and security of the person, and were not in accordance with the principles of fundamental justice. The SCC’s declaration of invalidity was suspended for one year.

Having decided to redraft these provisions, Parliament conducted online consultations. In addition, Parliament looked at models for dealing with prostitution from other countries (e.g., in Nordic countries, buying sex is illegal but selling it is not). Canada Justice introduced Bill C-36 the Protection of Communities and Exploited Persons Act on June 4, 2014. Because purchasing sex will be a crime, there are concerns that sex workers will be forced to negotiate with prospective clients in hidden locations, which will expose them to safety concerns similar to those caused by the former provisions. The House of Commons Justice Committee is examining the proposed new law in summer 2014. According to the Legislative Summary prepared by the Library of Parliament:

Bill C-36 amends the Criminal Code to, among other things,

  • create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
  • create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
  • create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet;
  • modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
  • create an offence that prohibits communicating — for the purpose of selling sexual services — 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;
  • ensure consistency between prostitution offences and the existing human trafficking offences; and
  • specify that, for the purposes of certain offences, a weapon includes anything used, designed to be used or intended for use in binding or tying up a person against their will.

The enactment also makes consequential amendments to other Acts.

The Government also promised $20 million to be aimed at getting prostitutes out of sex work (Blaze Carlson and Fine).  “The government says the bill will protect and keep communities safe by allowing prostitutes to rent apartments, screen clients, hire a receptionist or security guard, and advertise their own services” (Confused about changing prostitution laws in Canada? Bill C-36 Primer).

Blaze Carlson and Fine report that Evangelical and pro-family groups support the Bill, but sex workers and their legal advocates “said the law would be vulnerable to a constitutional challenge on many fronts.”

Because purchasing sex will be a crime, there are concerns that sex workers will be forced to negotiate with prospective clients in hidden locations, which will expose them to safety concerns similar to those caused by the former provisions. Further, it will be illegal to advertise sex services (of others) and one must decide whether the place one is selling sex is occupied by young persons. This will continue to raise safety issues about where one can legally sell sex. However, the new law’s purposes have been written in such a way that judges evaluating their constitutionality would have to consider the values of promoting dignity and equality and protecting children and communities. Thus, the concern is whether the new laws offend security of the person and freedom of expression or whether they will be upheld as constitutional (Blaze Carlson and Fines).

So, there are constitutional experts who believe that the new legislation will result in further Charter challenges (Blaze Carlson and Fines). Will the dialogue continue?

 

Authors:

Linda McKay-Panos
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.
 


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