by Stephany Mandin, Goldman Hine, reposted from Mondaq, Apr 8, 2016

In the landmark 2013 decision of Canada v Bedford, the Supreme Court of Canada declared that certain provisions of the Criminal Code, relating to the communication and engagement of prostitution, violated section 7 of the Charter of Rights and Freedoms. The impugned provisions made it an indictable offence to keep a “bawdy house” for purposes of prostitution, live wholly or in part off the avails of prostitution of another person, and/or communicate with another in a public place for that purpose. The Court specifically determined that the provisions violated security of the person by preventing sex workers from taking legal steps, such as hiring drivers, receptionists or bodyguards, or meeting in an open, public place to screen clients, to protect themselves against the risks involved in such activities.

In arriving at this conclusion, the Court noted that Parliament was not precluded from imposing limits on where and how prostitution was conducted, provided those laws did not infringe on the constitutional rights of sex workers. The Court in Bedford therefore granted Parliament an opportunity to revise the existing regime. Bill C-36, which received Royal Assent on November 6, 2014 and became law on December 6, 2014, was the Conservative Government’s response to that invitation.

Also known as The Protection of Communities and Exploited Persons Act, Bill C-36 stated its objective as denouncing and prohibiting the purchase of sexual services and protecting the human dignity of all Canadians. The Bill amended the Criminal Code to, among other things, create an offence prohibiting the purchase of sexual services or communicating in any place for that purpose, receiving a financial or other material benefit obtained directly or indirectly from the commission of sexual services, and communicating for purposes of selling sexual services in any public place where people under 18 may be present. In support of the proposed Bill, then Justice Minister Peter McKay claimed it was constitutionally sound and would protect vulnerable Canadians, and their communities, from an inherently dangerous activity.

Despite these claims, a growing concern emerged among constitutional scholars, lawyers and human rights advocates that far from reducing the risk of violence, the Bill instead continued to prevent sex workers from accessing legal means to enhance their safety. Contrary to section 7 and the decision in Bedford, many argued that Bill C-36 exacerbated, rather than ameliorated, the risks faced by sex workers.

Bill C-36 targets the commercialization of prostitution and seeks to promote values of human dignity by “denouncing and prohibiting” this otherwise legal activity. However, while the objectives of the Bill evidenced the Conservative Government’s intention to address the vulnerabilities and risks inherent to the sex trade, its effects may well have rendered it unconstitutional. This is because Charter principles mandate that laws must be knowable, unambiguous and proportionate to their objectives. Yet Bill C-36 did not define key terms essential to its application, the most notable being ‘sexual services’, which is open to broad interpretation and scope.

Moreover, by criminalizing the receipt of any benefit derived from the avails of prostitution, the Bill made it a crime for anyone to supply any service to a sex worker, simply because she is a sex worker. While there are exceptions to this offence, such as receiving the benefit as a result of legal or moral obligation, these exceptions are open to broad interpretation. Consequently, the Bill continues to deny sex workers the legal ability to take safety precautions that the court in Bedford held were essential to their security of the person.

Further, the Court in Bedford expressly held that face-to-face communication is an essential tool for enhancing the safety of sex workers. However, by prohibiting communications in a public place or any place children under 18 may reasonably be present, the Bill denied sex workers this tool. The amendments criminalized the activity of a group that the Supreme Court had already found to be especially vulnerable and marginalized. This concern was further exacerbated by the fact that while the Bill did not make prostitution illegal per se, it entirely prohibited the purchase of sexual services. Just as the right to an abortion is illusory if doctors are prohibited from performing them legally, it appears the Conservative Government attempted a back-door criminalization of prostitution by making it an offence to purchase sexual services. Rather than encouraging people to report incidents of violence, the amendments risked driving sex workers and their clients further underground for fear of criminal sanctions.

Sadly, it appears that these risks are materializing. Recent research conducted of women in the sex trade industry indicates that the Bill has increased fear of police, arrest and exposure among sex workers and their potential clients. By making it illegal to purchase sexual services, the Bill has led consumers of these services to seek out more isolated, and often more dangerous, locations and to avoid reporting violence, abuse or exploitation to the police. Far from protecting sex workers, the amendments have created a toxic environment of fear, shame and secrecy - all of which have had a profoundly adverse impact on sex workers themselves.

In Bedford, the Supreme Court determined that the impugned provisions went beyond merely regulating how sex workers were to operate by imposing dangerous conditions upon an already vulnerable group, thus preventing people engaged in a risky, but legal activity from mitigating those risks. In giving Parliament the opportunity to revise the laws respecting prostitution, the Court was seeking to ensure that laws were enacted which did not further aggravate these concerns. It appears, however, that Bill C-36 has nevertheless replicated many of the effects found in Bedford to be unconstitutional and contrary to the security of the person.

As the Court in Bedford aptly noted, Parliamentary deference cannot insulate legislation that creates seriously harmful effects for those to whom the law applies. Fortunately, these concerns have been echoed by the newly elected Liberal Government, who opposed the Bill when it was first proposed by the Conservatives in 2014. In fact, the Liberal federal justice minister, Jody Wilson-Raybould, recently stated that she is committed to replacing this flawed legislation and to “reviewing the prostitution laws and making sure that we’ve adequately addressed the concerns expressed by the Supreme Court.”

In the result, it appears that there is new hope for Parliament to reopen the conversation commenced by the Court in Bedford and to enact a Bill that ensures the safety and dignity of sex workers. Perhaps by giving sex workers a much needed voice at the table, the Liberal Government will be able to enact legislation capable of responding to the actual needs and circumstances of sex workers in a manner that both achieves legislative objectives and withstands future constitutional scrutiny.

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