Federal legislation allowing sale of sex will pass constitutional test, Justice Minister says

"We believe that the likelihood it will be challenged is very real," Justice Minister Peter McKay said. 

Photos by Laura Beaulne-Stuebing
Justice Minister Peter MacKay says Bill C-36, the so-call Protection of Communities and Exploited Persons Act, will probably be challenged in court. But he believes the bill will pass the constitutional smell test when and if it does. 
 
The controversial bill  criminalizes purchasing sex, but does not criminalize selling sex, except in areas where children could reasonably be present. It also criminalizes advertising for commercial sex services and the profit of selling sex by third parties. 

"As sure as night follows day, there will be challenges when new bills are presented," MacKay said Monday. "So we believe that the likelihood it will be challenged is very real."

But, he said, the bill is a "sound, sensible law and entirely defensible."

Parliament's justice committee is gathering in Ottawa this week for a special summer marathon of meetings to study the controversial piece of legislation. The justice minister was the first witness, and took questions from MPs for about an hour Monday morning. 

Bill C-36 was tabled in Parliament last month and has opposition parties, legal experts and sex work advocates worried. It came after a ruling from the Supreme Court -- the highly-publicized Bedford case -- that found Canada's prostitution laws unconstitutional. 
 
At the time of the ruling, prostitution itself was not illegal but a number of provisions around prostitution were, which the court found harmful to the lives of sex workers.

The Supreme Court gave Parliament the opportunity, with a one year deadline, to create new laws that would keep sex workers safe. Critics are worried that Bill C-36 will do the opposite. 

Critics are concerned, for example, that sex workers still won't be able to screen their clients -- one step that would go a long way to staying safe. 

Bill C-36 takes the objectives of previous prostitution related provisions in the criminal code and flips them on their heads. Before Bedford, it was illegal to operate a bawdy house, live off the avails of prostitution and communicate for the purpose of prostitution, and these provisions in the criminal code were meant to deal with prostitution as a public nuisance. 

The new legislation looks at prostitution as inherently harmful and exploitative, with the intention of reducing and ultimately ending the practice.  
 

"Not something people aspire to": MacKay

"No one raises their children to be prostitutes," MacKay told the committee. "That's not something people aspire to. We want to help individuals exit prostitution, and in fact on the preventative side, give them different career opportunities and choices."

A justice department official explained that the bill does deal with the safety aspects noted in the Bedford decision by, for example, allowing prostitutes to hire bodyguards and drivers as long as the relationship isn't exploitative - but that C-36 goes beyond Bedford, and creates a new legal framework. 

The Bedford ruling noted that Parliament should not be imposing dangers on an activity that's legal. With Bill C-36, purchasing sex is illegal, and so the framework and context is different. In this framework, the legislation's objective is to protect prostitutes from exploitation. 

"I believe that this legislation is constitutionally sound, but is good law, and good public policy, that will help vulnerable individuals," MaKay said.  

There are a number of critics, however, that say prostitution is a legitimate form of work and that Bill C-36 ignores those who want to make a living in the industry. 
 
“This bill will do the exact opposite of what it purports to do in its preamble,” warned Katrina Pacey of Vancouver’s Pivot Legal Society, counsel for current and former sex workers from Vancouver’s Downtown Eastside who intervened in the Bedford casein Lawyers Weekly

“It will drive them into dark and isolated places: under bridges, into industrial areas, under viaducts, into alleys...and it will continue to violate their most fundamental rights to have safety in their work environment.”
 
NDP MP Craig Scott asked the minister how he, and how the bill, would define individuals who practice sex work for a living and want to continue to do so. MacKay simply answered, again, that the view of the government is that prostitution is inherently exploitative and that those in the industry are victims. 

Justice committee will be meeting all day Monday to Thursday in its study of the bill. 

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