Canada’s Flawed Sex Trade Law

Jan 20, 2015
Legal
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c-36

In December, a new prostitution law came into force in Canada. The Protection of Communities and Exploited Persons Act, or Bill C-36, criminalizes the purchase (but not the sale) of sexual services, and restricts the advertisement of sexual services and communication in public for the purpose of prostitution. The bill replaces legislation, overturned in December 2013 by Canada’s Supreme Court, which criminalized acts associated with selling sexual services. In its 2013 ruling, the Court deemed these laws in violation of sex workers’ rights to safety and security, and gave Prime Minister Stephen Harper’s Conservative government one year to implement new legislation.

c-36

Many hoped this would be Canada’s chance to emulate New Zealand, where the buying and selling of consensual sex between adults was decriminalized in 2003, and provisions were introduced to protect sex workers’ health and safety. In New Zealand, valid certificates are required for prostitution businesses with more than four employees; their location and advertising may be regulated. Five-year reviews found no evidence that decriminalization had increased the size of the sex industry. Sex workers reportedly found it easier to refuse a client, felt more protected from attacks and safer to report abuse. And the health benefits are clear: A 2012 United Nations study concluded that New Zealand’s approach increased “access to H.I.V. and sexual health services and is associated with very high condom use rates.”

Instead of implementing such proven policies, Bill C-36 has — as Justice Minister Peter MacKay, who sponsored the legislation, told the Senate Committee in September— effectively made prostitution “illegal for the first time in Canada.” Not only does it reproduce many of the statutes struck down by the Supreme Court in 2013, it goes further, making it a crime to purchase sexual services. Ontario’s premier, Kathleen Wynne, has expressed “grave concern,” and has rightly asked her province’s attorney general to rule on its constitutionality. But the laws are here to stay, at least for a while: Alan Young, lead counsel on the 2013 case, estimates that it could take five to six years for a new challenge to reach the Supreme Court.

In Canada, it remains a crime to profit from the prostitution of others, or to communicate in certain public spaces for the purpose of selling sex. But Bill C-36 now makes it illegal to buy sex, and for third parties to advertise the sale of sexual services in newspapers or online. Generally, the result of laws like these is to displace street-based sex workers to remote, often unsafe areas, so clients may avoid police detection. Even those with access to private spaces will likely feel more threatened: Under Bill C-36, it is illegal to buy sex anywhere, including indoors. And the restrictions on advertising and communication limit sex workers’ ability to screen clients or negotiate transactions. Of course, this was entirely the point. “We don’t want to make life safe for prostitutes,” Senator Donald Plett, a Conservative, told the Senate in September, “we want to do away with prostitution.”

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