Wednesday, June 4, 2014


Criminal lawyers, like almost everyone else nowadays, have an internet listserve. On reading the new proposed prostitution legislation (which criminalizes the buying of sex) one wag commented, "lots more work from people used to paying sizeable hourly rates".

Constitutional lawyers will particularly benefit from the proposed legislation. The Supreme Court ruled that laws criminalizing aspects of prostitution, although not criminalizing prostitution itself, put prostitutes at physical risk and are unconstitutional. The proposed legislation in its current form is of doubtful constitutionality and will certainly be challenged in court.

The Protection of Communities and Exploited Persons Act, as the proposed legislation is formally called, imposes draconian punishments on anyone paying for sexual activity. Conceptually the legislation is based on the idea that sexing sex is not forbidden but buying sex is. The curious concept of legalizing sale while criminalizing buying is almost certainly a result of the Supreme Court of Canada's finding that making illegal activity surrounding the legal act of prostitution could be unconstitutional.

Here, broadly put, the legislation does not criminalize the activities around the sale of sex.

As a result, on a rather mechanical reading of the Supreme Court's ruling, the new legislation might survive.

All that said, the real question is whether prostitution should be legal. If society considers prostitution should be illegal then a direct prohibition of prostitution should be imposed. Almost all American states criminalize prostitution and the legal regime has proven unproblematic (although it has done little to curb prostitution).

My own view is that prostitution should not be treated as a criminal matter but rather as public welfare and health issue. Prostitution should be discouraged but by incentives and funding to allow people to escape prostitution. The criminal law should not be used.


Scotian said...

One new element I wonder can pass Constitutional scrutiny is the ban on advertising for a service that is legal to sell. Does that manage to violate freedom of speech protection or not? I find the idea of being able to legally sell something yet not legally being able to advertize its saleability for sale to be rather difficult to reconcile myself leaving aside all the other arguments about how removing advertizing ability makes the profession of prostitution practice more dangerous. I understand that as a lay person I am not always able to understand the complexities within the law, but even with that qualifier I just don't see how that would pass, and that would be a whole new area of Charter challenge for the prostitution file to be created by the Harper government even after the Bedford decision already warned them that they needed to really think this through this time before offering another piece of legislation dealing with prostitution.

So what would be your take on this question?

James C Morton said...

The whole bill is unconstitutional

Anonymous said...

"One new element I wonder can pass Constitutional scrutiny is the ban on advertising for a service that is legal to sell."

No one can advertise cigarettes yet they're legal to sell.

That being said, not only is the bill unconstitutional, but it reflects the typical prudishness of the CPC base and their attitudes that oh so icky activity called sexual intercourse. ;-)

Scotian said...


That does not surprise me, I just was baffled why even this government would decide to add a whole new area for Charter challenge to the list they already compiled in the legislation. I think a lot of people are going to be going "huh" at that one.


Yet tobacco stores are still legal as well as other stores having signs like you must be 19 years old to buy them there, so the fact that they are for sale somewhere still is possible to show and for people to find out, albeit extremely restricted, whereas from what I understand of this new bill there is no way whatsoever for a sex worker to do any of these things at all totally choking off the ability to make known where and how to obtain the product, unlike with tobacco. Even at my local grocery store this is a tobacco store which calls itself such, but a sex worker would not have the same ability under the legislation, which is a critical difference.

As to the moral prudishness in Harper's base, well nothing new there, and the idea that everyone in the sex trade is always a victim is *NOT* supported by the actual evidence. A fair percentage of them yes are from human trafficking and/or other coercions, and others are there because they feel like there is no other way to make money/survive (although I don't see a lot of difference for that than taking other extremely unpleasant legal work with harsh conditions because it is the only way to stay afloat, this is of course excluding the ones there because of human trafficking). However, there are others who go into eyes open, informed, and do so because for them they are most comfortable with it as a means of earning income, and/or because it combines making money with something they like to do (and yes, there are some who actually enjoy the work, especially when they feel they have guarded their safety well, this is not theoretical knowledge I am speaking of first hand knowledge here). To call them victims is to demean them, and it does show the inability of such folks to understand that just because a path is not for them does not mean it is not for anyone, freedom of choice though in many ways appears to be a difficult concept for many of Harper's base.