Advocates for the decriminalization of sex work say testimony delivered today (July 7) by Justice Minister Peter MacKay offered few clues as to how proposed prostitution rules could withstand a constitutional court challenge.
Jamie Lee Hamilton, one of Vancouver’s leading advocates for sex trade workers, argued MacKay’s remarks are indicative of a divide that’s opened between the federal Conservatives and Canada’s top judges.
“I think he [MacKay] is challenging the Supreme Court of Canada here, and I’m not sure if that’s right, for parliamentarians to be doing that,” she said in a telephone interview. “It seems that maybe they [the Conservatives] find some of the judges a bit too liberal-thinking, but the judges are addressing issues of law. On that frontier, I just find it really odd that the Conservative government seems to be in attack mode against the Supreme Court of Canada.”
This morning MacKay spoke at-length on Bill C-36’s proposed changes to prostitution laws at a special standing committee meeting scheduled to continue through to July 10.
“Bill C-36 does not seek to allow or facilitate the practice of prostitution,” MacKay said. “To the contrary, its goal is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately, abolishing it, to the extent possible.”
Among other provisions, Bill C-36, makes it a criminal offence to purchase sexual services or communicate for that purpose.
Hamilton argued that stipulation targeting clients contradicts the spirit of a December 2013 Supreme Court ruling known as the Bedford decision.
She explained that Bedford struck down laws criminalizing key activities performed by sex workers for the reason that Canada’s prostitution laws should not endanger those individuals’ safety. Hamilton argued that by shifting penalties to target clients, sex workers are forced to remain underground, where they are less safe.
At the July 7 committee meeting, MacKay conceded that he expects Bill C-36 will be subject to a constitutional challenge in the Supreme Court. But he argued the proposed changes will pass that test.
MacKay also emphasized that Bill C-36 marks a “fundamental shift towards the treatment of prostitution as a form of sexual exploitation”.
“Without doubt, persons who sell their own sexual services are prostitution’s primary victims,” he added.
Hamilton took issue with MacKay’s characterization of all sex workers as victims.
“I think it’s wonderful that he wants to address exploitation, but we already have laws that deal with exploitation,” she said. “He’s equating all prostitution as exploitation, and that’s really an extreme type of thinking.”
John Lowman is an SFU professor of criminology who spoke at the Justice Committee meeting shortly after MacKay delivered his opening remarks.
In a telephone interview, Lowman told the Straight that in addition to constitutional arguments cited in Bedford—which relied on section seven of the Canadian Charter of Rights and Freedoms—Bill C-36 could also face a constitutional challenge under section 15, which pertains to equality, including equality of the sexes.
He explained the new laws could be interpreted as discriminatory against men. That’s because an estimated 80 percent of sex workers are female, because Bill C-36 decriminalizes the side of a transaction for sexual services conducted by a sex worker, and because it criminalizes the side of a transaction conducted by a client.
“In my eye, that creates a problem under section 15, which guarantees equality of treatment of the two sexes,” Lowman said. “This particular law allows that person to drum up business and then prosecute the person that takes the bait….It is institutionalized entrapment of men.”
Lowman argued that Bill C-36 repeats mistakes identified in Bedford and creates new laws that are also likely to be found in violation of the charter.
“Everything he [MacKay] has said has convinced me that this can’t stand up to constitutional muster,” Lowman said.