Are Canada’s prostitution laws about to get an overhaul?

Man looks for money beside sex worker.
Man looks for money beside sex worker. Stock photo from iStock/Getty Images.

In December of 2013, the Supreme Court of Canada finally overturned Canada’s archaic prostitution laws.

The court unanimously agreed in a 9-0 decision in Canada (Attorney General) v. Bedford, that the existing prostitution laws were “grossly disproportionate” and overly broad, and that it put the health, safety and lives of prostitutes at risk.

As Chief Justice Beverley McLachlin commented: “It’s not a crime in Canada to sell sex for money.” In other words, the work of sex workers should not be criminalized.

The court gave the federal government one year to re-write the law, and the Conservatives have done so, but the re-written rules seem to have drawn the ire of critics and sex workers.

They seem not to meet the objectives that the Supreme Court set-out, which is to make sure prostitutes are protected while practicing their profession.

The question now is: will the new Liberal government overhaul on the prostitution law the Conservatives have written?

The new federal justice minister, Jody Wilson-Raybould has recently said that there may be changes in store for the new prostitution law passed in 2014.

The fact that the Liberal government may want to overturn some of the provisions of Bill C-36 is no surprise, as they were one of the parties who were critical of the bill.

So what is wrong with the new prostitution laws as written under the former federal government?

The Supreme Court decision struck down three provisions of the Criminal Code of Canada:

  1. Keeping a common bawdy-house, which refers to s. 197 and 210 of the Criminal Code;
  2. Living off the avails of prostitution, which refer to s. 212(1)(j) of the Criminal Code; and
  3. Communicating in public for the purpose of engaging in prostitution, which refers to s. 213(1)(c ) of the Criminal Code.

In the submissions by the Canadian Bar Association to the Senate Standing Committee on Legal and Constitutional Affairs, the CBA analyzed some of the implications of the new bill. They presented their submissions on October 30, 2014, in which the CBA voiced its concerns with the constitutional validity of Bill C-36.

Primarily, the CBA believed that the new bill would run into trouble and they “caution that if the government proceeds with Bill C-36, portions of the Bill would suffer from constitutional problems that are likely to result in a declaration of invalidity.”

Specifically, the CBA found issue with the provisions in the new bill that spoke to “offence to communicate for the purposes of offering or providing sexual services…in a public place”, “receive material benefit…from the obtaining of sexual services”, “procure a person to offer sexual services” and “advertise an offer to provide sexual services.”

If you look at the provisions that the Supreme Court struck down, it looks like the new provisions are similar to those that were struck down by the court.

That kind of defeats the purpose of the provisions being struck down in the first place as it still criminalizes the communications to provide sexual services. How can you even provide services if you can’t communicate them?

The CBA advocated in their submissions that quite a few of these new provisions in Bill C-36 be removed, before they were officially made law. However, the bill was made law on December 6, 2015 and did not take these criticisms into consideration.

Most critics of the new bill echoed the CBA’s concern that not only could some of the new provisions be unconstitutional, but they would likely result in sex work being even less safe for prostitutes.

Sex workers themselves penned articles stating that Bill C-36 will put more sex workers in jeopardy, because advertising for services is criminalized. This will force many sex workers back out on the streets and make them less able screen clients for safety.

This begs another question: why weren’t sex workers consulted when the new bill was drafted? The Supreme Court pointed to their safety being highly important, so shouldn’t they have had a voice in the drafting of the new bill? This is highly problematic. After all, what do politicians really know about being sex workers?

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