Selling Sex: Bill C-36, Prostitution, and the Canadian Constitution

Alexis Mulvenna

Last December, prostitution was forced on to the federal agenda when the Supreme Court of Canada unanimously struck down all three related Criminal Code provisions as unconstitutional, giving Parliament just one year to put forth new legislation. The Court was responsive to arguments made by the applicants in Canada v Bedford under section 7 of the Charter of Rights and Freedoms – namely, that of security of the person, a right that prevents government-imposed harm to an individual’s body or mental state.

The decision found provisions that prevented sex workers from communicating for the purposes of prostitution to be “grossly disproportionate to [the law’s] objective of preventing public nuisance.” The Court was receptive to evidence of sex workers put at risk of violence as a result of the prohibitions, and whom were often forced to rush into cars in order to avoid police detection – likely contributing to the murder of many women, including the victims of infamous serial killer Robert Pickton. A third provision that made it illegal to live off the avails of prostitution was also struck down in an acknowledgement that it could be applied broadly to body-guards, accountants, and drivers in legitimate employment.

The Supreme Court decision should have provided a coherent framework for policy-makers in drafting a response that was constitutionally sound. Yet at first glance, the proposed legislation appears to have many of the same constitutional issues as its predecessor.

The federal government has advanced Bill C-36, The Protection of Communities and Exploited Persons Act, that if adopted would criminalize “obtain[ing] for consideration… the sexual services of a person.” The legislation is based off the ‘Nordic Model’, which makes the buying of sex illegal. Numerous sex workers’ rights and advocacy groups such as the Pivot Legal Society have come out against its implementation, arguing that the model incorrectly labels many sex workers as victims who do not identify as such and leaves them at risk of violence.

From a legal perspective, it would appear that the federal government has failed to consider how this proposed legislation would hold up under a constitutional challenge. Criminalizing the purchase of sex will not allow ample time for sex workers to check bad date sheets, negotiate prices, or scan a vehicle for potential threats. Instead, clients will be pressuring sex workers to enter swiftly into their vehicles, for fear of being caught and facing fines ranging from $500 – $2,000 or up to five years in jail – in effect, creating the very same concerns that swayed the Supreme Court’s 2013 decision.

While Parliament may appear unresponsive to the constitutional issues outlined by the Supreme Court last December, it does appear to be attempting to reframe the issue. The objective of the prostitution legislation has been changed from ‘preventing public nuisance’ to a much more serious ‘protecting exploited persons.’ But there is an inherent contradiction in this too, as a law that is put in place to protect a particular class of individuals should not also cause security concerns for that same group.

The reframing of prostitution in Canadian public policy is perhaps most explicitly viewed in the words of Minister of Justice Peter MacKay, who stated:

“Bill C-36 reflects a fundamental paradigm shift towards the treatment of prostitution as a form of sexual exploitation…any constitutional analysis would be based on its new legislative objectives and framework.”

But criminalizing the purchase of sex will not stop the industry’s clients from seeking it out; it will only influence the way in which they do so, and in a manner that will make it even more dangerous. The federal government’s proposed legislation also fails to address the many safety, health, and ethical concerns that sex workers have, and which may be more adequately addressed by a different legislative response. Yet while both the Liberal and NDP Party have criticized the unconstitutionality of Bill C-36, neither has offered a viable policy alternative.

One potential alternative is the ‘New Zealand Model’, under which brothels, escort agencies, and soliciting are decriminalized and overseen by a regulatory scheme. The model is characterized by workplace health and safety rules developed by a sex workers’ collective, a disputes tribunal that oversee issues related to contracts made for the purchase of sex, and a Labour Inspectorate and Mediation Service to deal with employer-employee disputes. Responsibility for determining zoning by-laws and by-laws related to the advertisement of sex work falls to municipal governments.

An early report on the effectiveness of the New Zealand model has been largely positive, yet there is need for improvement in working conditions and violence prevention. A Canadian response using an appropriate combination of national and local regulation, licensing, and zoning would surely pass constitutional scrutiny. It would also address the Justices’ main concerns regarding the security and well-being of sex workers. But this is a far cry from what has been proposed.

On Monday night, Bill C-36 passed the House of Commons by a 156-124 vote. It will now need to pass the Senate — a formality at best, with a majority government pushing for its adoption. Yet as confident as the federal government may be that the new legislation will be in place before the existing laws expire in December, sex worker advocacy groups are equally as confident in their ability to subsequently bring forth a court challenge on its constitutionality — and the impact that the new laws have on sex workers will no doubt be an evidentiary concern in the case. After the long judiciary and appeals process, it will be interesting to see if Parliament should have just listened to the Supreme Court the first time around.

Alexis Mulvenna is a 2017 Master of Public Policy candidate at the School of Public Policy and Governance, and a 2017 Juris Doctor candidate at the University of Toronto Faculty of Law. She holds a Bachelor of Management and Organizational Studies from Western University, where she completed a double major in business management and psychology. Alexis has a keen interest in the intersection of law and policy, and in many areas of social policy.