How constitutional are Canadian policies?
In Canada, until recently, the act of prostitution itself was not illegal; however, statutes existed criminalizing sex for money. Notably, the Criminal Code made it unlawful for anyone to live on the avails of prostitution, to receive any material benefit from a sex worker. To keep a common bawdy-house, to sell services indoor. And to communicate in public regarding prostitution. However, Terri Jean Bedford, Amy Lebovitch, and Valerie Scott challenged these laws, in the Ontario Superior Court of Justice in, Canada (Attorney General) v Bedford. They argued that these laws were conflicting with their Charter rights. The case ruled that those sections of the Canadian Criminal Code were unconstitutional. As a result, the Harper government introduced Bill C-36 (Bruckert et al, 2013). Although this bill claims to be constitutional and protect the rights of sex workers, many argue that it is not. The purpose of this brief will be to bring to light how unconstitutional Bill C-36 is, by underlining how it is endangering sex workers rather than “protecting” them. The main argument is that the Bill C-36 criminalizes prostitution while simultaneously claiming “[…] to ameliorate the legal situation of sex workers” (Stewart, 2016, p. 69). These two positions are conflicting on one another, and it is arguable that the Bill “[...] is an incoherent piece of legislation that may be unconstitutional for creating arbitrary and grossly disproportionate effects on the security of the person of sex workers” (Stewart, 2016, p. 69).
What is Bill C-36 and how is it unconstitutional?
Bill C-36, The Protection of Communities and Exploited Persons Act was implemented in order to attempt to eliminate the three defects of the Criminal Code mentioned in Bedford. Notably, to live on the avails of prostitution, to keep a common bawdy-house and to communicate in public regarding prostitution, due to the violation of section 7 of the Charter. We will argue that the Bill decriminalized those offences, but implemented restrictions making it hard or nearly impossible to work in safety. Thus, making it an unconstitutional Bill, incapable of protecting sex workers (Stewart, 2016).
To begin with, the Bill rejected the bawdy house offence, although it gives the impression that sex workers, under this Bill, can work indoor, it is not the case (Stewart, 2016). The material benefit offence was introduced, in order to make it nearly impossible to work indoor and still respect the law (Stewart, 2016). It is essentially an offence to those who receive money or material benefit from someone who obtained that money or material benefit by sex working (Stewart, 2016). This new offence does not prohibit sex workers from working indoor, but it makes it nearly impossible for them to do so:
[...] the only lawful way for a sex worker [...] to do this work is to buy a suitable building or apartment and operate the business entirely on their own. The sex worker would not be able to rent premises for this purpose because the landlord would then be committing the material benefit offence; [...] because they would receive the rent in the context of a commercial enterprise” (Stewart, 2016, p. 78).
Similarly, sex workers would not be able to lawfully hire a receptionist, bookkeeper, driver, or bouncer, as section 286.2(5)(e) would deny these employees any exemption from the material benefit offence (Stewart, 2016). And the communication of sex work remains unlawful, however sex workers would only be subjected to punishment, if the communication is in a public open space or next to schools, playgrounds and daycares (Campbell, 2015).
In addition, before Bill C-36, the preoccupation was more so on the sex workers themselves, rather than the buyers, those who engaged in buying services were invisible (Campbell, 2015). That is why the Bill was based on an interpretation of the Nordic Model of prostitution, whereby only the buyers are criminalized (Ka Hon Chu & Glass, 2013). This again exposes sex workers to more danger and victimizes them. In Sweden for instance, after the implementation of the Nordic model, sex workers have found themselves in a more dangerous environment because their regular clients have avoided them in fear of arrest (Ka Hon Chu & Glass, 2013). Sex workers had less clients on the market so, they had to settle for the drunk and violent clients and acquiesce to unprotected sex to request higher prices (Ka Hon Chu & Glass, 2013). In addition, extreme police surveillance had pushed sex workers to work in dangerous isolated areas, to avoid invasive police searching (Ka Hon Chu & Glass, 2013). Similarly, in Canada, under the Nordic model sex workers have found themselves targeted and abused by the police. To begin with, demeaning and degrading verbal abuse from police officers, “Street-based sex workers report being called ‘diseased’, ‘nasty whores’, and ‘crack heads’ by law enforcement” (Karim, 2017, p.28). Criminalizing prostitution also subjects sex workers to sexual abuse by police officers. In Ottawa, for example, “street-based sex workers recount strip-searches performed by male officers, which is a violation of their right to be searched by an officer of the same-sex” (Karim, 2017, p.28). In Toronto, one officer “[…] used the threat of his handgun to frighten sex workers into providing oral sex” (Karim, 2017, p.29). Although the goal of Bill C-36 is to reduce the violence, it fails to do so (Galbally, 2017). Criminalizing prostitution dehumanizes sex workers and subjects them to violence from clients and law enforcement (Karim, 2017). With the introduction of Bill C-36 nothing has really changed, they are still working in dangerous environments, and the Nordic Model does nothing more than just portray sex workers as victims of Johns.
Bill C-36, a protection against public nuisance
The court ruled that the criminal offences were unconstitutional, and that the Harper government should engage in reforming these laws to ensure that it would no longer endanger sex workers. Yet, this Bill essentially just rephrased those offences in a constitutionally sound manner. Therefore, the constitutionality is uncertain, it prioritizes the public nuisance rather than the safety of sex workers, “it advances the interests of ‘communities’ without recognition of sex workers’ membership within such communities” (Campbell, 2015, p. 29). The rhetoric of protecting the communities from the harm, threat, inconvenience of sex work, provided the Harper government a justification in continuing criminalizing sex work. In this rhetoric, sex workers become excluded from the community, where as they have no lawful presence in the community, in results, they get deprived of social and political citizenship (Campbell, 2015). Thus, this exclusion exposes them to violence.
In conclusion, Bill C-36 is incapable of ensuring safety and the Nordic model interpretation does nothing but subject sex worker to more danger and violence. The nuisance rhetoric embedded in Bill C-36 creates tension in communities and enforces the Us vs Them. As a result, the constitutionality of Bill C-36 will remain questionable. This brief recommends the consideration of decriminalizing sex work, and to follow the New Zealand model of prostitution legalization. This model is focused on empowering sex workers, it takes in fact that the best way to put in policies and laws that will protect these workers, is by consulting them (Armstrong, 2017). It would be important to note that during the Justice Committee’s hearings for Bill C-36 there was a limited engagement of sex workers as the committee gave more importance to the “anti-trafficking groups, police, and religious associations” (Karim, 2017, p.15). Bedford herself, was dismissed, even though the Bill C-36 was a response to the defects of the criminal code that she raised herself in court. Bedford was escorted out by security, for going over her allotted response time during a Bill C-36 Committee hearing (Karim, 2017). The reform to decriminalize would ensure better health and safety for sex workers as the standard labour laws would become applicable to them (McCarthy et al, 2012). Decriminalization would enable sex workers to prioritize their health and minimize the transmission of sexual diseases as they would not be needing to compromise condoms anymore. Additionally, their health would be regulated by labour laws ensuring that they get frequent checks for sexually transmitted diseases (Shannon, 2016).
- Armstrong, Lynzi. (2017). Decriminalising sex work is the only way to protect women – and New Zealand has proved that it works. Retrieved from https://www.independent.co.uk/voices/sex-workers-decriminalisation-of-prostitution-new-zealand-new-law-works-research-proves-sex-workers-a7761426.html
- Bruckert, C., & Hannem, S. (2013). Rethinking the Prostitution Debates: Transcending Structural Stigma in Systemic Responses to Sex Work. Canadian Journal of Law and Society, 28(1), 42-63.
- Campbell, A. (2015). Sex Work’s Governance: Stuff and Nuisance. Feminist Legal Studies, 23(1), 27-45.
- Galbally, Phoebe J. (2016). Playing the victim: A critical analysis of Canada's Bill C-36 from an international human rights perspective. Melbourne Journal of International Law, 17(1), 135-169.
- Karim, Yadgar, author, Karim, Yadgar, Bruckert, Chris, degree supervisor, & University of Ottawa. Department of Criminology. (2017). Ottawa Street-based Sex Workers and the Criminal Justice System : Interactions Under the New Legal Regime.
- Mccarthy, B., Benoit, C., Jansson, M., & Kolar, K. (2012). Regulating Sex Work: Heterogeneity in Legal Strategies. Annual Review of Law and Social Science, 8(1), 255-271.
- Sandra Ka Hon Chu, & Rebecca Glass. (2013). Sex Work Law Reform in Canada: Considering Problems with the Nordic Model. Alberta Law Review, 51(1), 101.
- Shannon, Kate. (2016). HIV prevention, criminalization, and sex work: Where are we at? Retrieved fromhttps://www.catie.ca/en/pif/fall-2016/hiv-prevention-criminalization-and-sex-work-where-are-we
- Stewart, Hamishi. (2016). The constitutionality of the new sex work law. Alberta Law Review, 54(1), 88.