Harper’s Prostitution Bill C-36 ‘Offends’ Charter: Legal Experts

by: Obert Madondo  | Published Wed. Jul 23, 2014

Prostitute talking to a potential customer in Western Europe. (Photo: Kay Chernush for the U.S. State Department/Wikimedia Commons)

Prostitute talking to a potential customer in Western Europe. (Photo: Kay Chernush for the U.S. State Department/Wikimedia Commons)

Over 200 legal experts from across Canada recently wrote to Prime Minister Stephen Harper to protest Bill C-36, the Conservatives new prostitution law.

In a letter addressed to the prime minister, the experts said Bill C-36 “likely to offend the Charter as well” as the laws it seeks to replace did.

Last December, the Supreme Court of Canada struck down Canada’s old prostitution laws arguing that they were unconstitutional. They violated the Charter of Rights and Freedoms by penalizing sex workers, the court declared.

In June, Justice Minister Peter MacKay introduced the Conservatives’ new legislation, Bill C-36, also deceptively christened “Protection of Communities and Exploited Persons Act.” Bill C-36 purports to follow the the “Nordic model” by shifting the penalties to johns.

“Such criminalization will continue to limit the practical ability of sex workers to screen their clients or negotiate the terms of the transaction,” the experts said in the letter. “Sex workers will continue to face barriers to police protection and will be prevented from operating in a safe indoor space.”

July 7, 2014

The Right Honourable Stephen Harper, P.C., M.P.
Prime Minister of Canada
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2

Dear Prime Minister:

Re: Canada’s response to the decision in Canada (Attorney General) v. Bedford

We write to you as concerned citizens and members of the legal profession.

We are concerned about the direction your government is taking with respect to adult prostitution in Canada. Bill C-36, also known as the Protection of Communities and Exploited Persons Act, proposes a legal regime that criminalizes many aspects of adult prostitution, including the purchase of sexual services, the advertisement of sexual services, and most communication in public for the purpose of prostitution.

As the Supreme Court of Canada unanimously held in Canada (Attorney General) v. Bedford (“Bedford”), three of Canada’s current adult prostitution laws are an unjustifiable infringement of sex workers’s right to security of the person, pursuant to s. 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). These laws were found to create and exacerbate dangerous conditions and prevent sex workers from taking action to reduce or mitigate the risks they face. We are concerned that, for the very same reasons that caused the Court to strike down these prostitution laws, the criminal regime proposed by Bill C-36 is likely to offend the Charter as well.

The prohibition on purchasing sexual services (and communicating anywhere for that purpose) will have much the same effect as existing adult prostitution laws. Targeting clients will displace sex workers to isolated areas where prospective customers are less likely to be detected by police. Such criminalization will continue to limit the practical ability of sex workers to screen their clients or negotiate the terms of the transaction, as there will be pressure from clients to proceed as quickly as possible. Sex workers will continue to face barriers to police protection and will be prevented from operating in a safe indoor space, as clients face the potential of being arrested if they attend such spaces.

As a result, while criminalizing the purchase of sexual services is said to be aimed at protecting sex workers, this type of criminal prohibition will in fact do what the current adult prostitution laws do, which is to subject sex workers to a greater risk to their safety. This constitutes the reason why such laws were invalidated in the Bedford judgment.

Bill C-36 also proposes a law that will prohibit the sex industry from advertising. This type of prohibition will significantly limit sex workers’ ability to work safely indoors, as it restricts their ability to communicate their services to potential clients. This is concerning considering that the Court in Bedford clearly found that the ability to operate in indoor venues is a key measure for sex workers to reduce the risk of violence.

We would also like to address the proposed prohibition on communication to offer sexual services in a public place that is or is next to a place where a person under the age of 18 could reasonably be expected to be found. This pro-vision continues to criminalize street-based sex workers, who are among the most marginalized segment of the industry, and is only marginally narrower than what the Court struck down in Bedford. The law will have the same effect of displacing sex workers to isolated areas where they are more likely to work alone in order to avoid police detection, and where they will continue to rush into vehicles without taking the time to screen clients and negotiate the terms of the transaction.

We urge you to keep in mind the harms that the Court in Bedford said were caused by criminal prohibitions and to ensure that any future legal regime conforms to the Charter and does not cause sex workers an increased risk of harm.

Yours sincerely,

You can find the full list of signatories and a French version of the letter HERE.

Bill C-36 recently underwent a marathon parliamentary session involving hearing from more than 60 witnesses. Speaking at one of these meetings MacKay conceded that Bill C-36 might not survive a constitutional challenge.

Obert Madondo is an Ottawa-based progressive blogger, and the founder and editor of The Canadian Progressive. Follow him on Twitter.com/Obiemad

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Obert Madondo

Publisher and editor
Obert Madondo is an Ottawa-based blogger, activist, photographer, digital rights enthusiast, former political aide, and former international development administrator. He's the founder and editor of these independent publications: The Canadian Progressive, a political blog dedicated to progressive Canadian journalism; The Zimbabwean Progressive, a political blog dedicated to producing fearless, progressive, adversarial, unapologetic, and activism-oriented Zimbabwean journalism; and Charity Files, a publication dedicated to journalism in the charitable public's interest. Follow Obert on Twitter: @Obiemad
  • Matty

    The G&M missed one other important point that Canadians should know. Attempting to differentiate the purchaser from the seller won’t work. Entrenched in Canadian Criminal Law is the concept that people who encourage and contribute to an offense are also part of the offense.

    From Canada’s Criminal Code:

    Parties to offence

    21. (1) Every one is a party to an offence who

    (a) actually commits it;

    (b) does or omits to do anything for the purpose of aiding any person to commit it; or

    (c) abets any person in committing it.

    Marginal note:Common intention

    (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

    So a prostitute who encourages a John to buy her services is also a party to the purchase of the sex. Selling the sex is not a crime but she should be charged with purchasing sex by being part of the transaction.

    Of course they aren’t going to charge the prostitute but what is going to happen if you have a law that is selectively applied by the state to prosecute men who commit the offense but not prosecute women who commit the offense. The law is a Charter challenge waiting to happen.

    From the Charter:
    28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.