It is not against the law to sell sex for money. But the Harper government is determined to make it as unsafe as possible.
Last year, the Supreme Court struck down several prostitution-related crimes in Canada (Attorney General) v. Bedford. The appeal was about whether Parliament was regulating prostitution in a legal way. The Court concluded it was not. It said the law made selling sex so dangerous that it outweighed the social benefit of combating “public nuisance.”
On Wednesday, the Harper government unveiled Bill C-36. The new law would keep the dangerous world for prostitutes as dangerous as ever. Strangely most of the intellectual energy behind the law is dedicated to immunizing it from legal challenge..
The proposed legislation is based on a paternalistic world-view, far removed from the reality of the sex worker trade proven in evidence in the Bedford trial. Under C-36, buying sexual services will remain illegal. So too will profiting from the prostitution of others. So much for the idea of allowing women to organize to protect themselves. The Supreme Court said sex workers face danger because of laws that forced them to operate on the risky fringes of society. The new law keeps them right out there on the fringe, safely isolated from associational protection. You don’t have to like the sex trade to agree that sex trade workers deserve safety.
From a legal perspective, the most important part of Bill C-36 is the preamble. While the old laws were designed to combat public nuisance, the preamble says the new laws are rooted in “grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it” and “the social harm caused by the objectification of the human body and the commodification of sexual activity.” By redefining the purpose of prostitution regulation as a moral issue, the government has fundamentally changed the basis of any future legal battle. It is harder to argue that a law’s negative effects are disproportionate to its purpose when Parliament has given it such a Grand Purpose.
This is not judicial-legislative dialogue. It is a stubborn reactionary government focused on one-upmanship rather than problem solving. Rather than attempting to resolve the public safety concerns identified by the Court in Bedford, the government has devoted its efforts to maintaining the status quo while protecting itself from the next constitutional challenge. Bill C-36 does not deserve public or Parliamentary approval.