By targeting pimps and johns rather than prostitutes, Bill C-36 succeeds in improving on the safety concerns that led the courts to strike down most of Canada’s old prostitution law last year. But there is still work to do.
OTTAWA, Oct. 16, 2014 – Federal legislation that rightly targets johns and pimps instead of prostitutes could well withstand a constitutional challenge as long as key steps are taken to help women exit prostitution, a new commentary from the Macdonald-Laurier Institute finds. This is despite much public commentary asserting the legislation is fatally flawed.
Benjamin Perrin, a University of British Columbia law professor who has extensively studied human trafficking, says those who favour a different approach – such as decriminalization or even outright legalization – are unlikely to find success in striking down the law in the courts.
The federal government created the new legislation, known as Bill C-36, after the Supreme Court struck down a significant portion of Canada’s old prostitution laws.
The December 2013 Bedford decision found that Canada’s legal framework makes room for regulating where and how prostitution can be conducted. However, the court ruled, any new legislation cannot increase the risk for prostitutes.
The MLI commentary, titled "How to Make Canada's New Prostitution Laws Work", finds that the new law is better designed.
One of the biggest risks to the legislation is if courts find that it materially increases the risk to prostitutes. But C-36, which was passed by the House of Commons last week and will soon become law, breaks with the old legislation by explicitly recognizing the exploitative nature of prostitution, rather than treating it as a nuisance which needs to be kept from public view.
By making it illegal to buy from or exploit prostitutes while only targeting those who are selling sex in certain cases, the new legislation shifts criminal responsibility away from prostitutes to johns and pimps.
“The ultimate question that will be addressed by a future court will be whether Bill C-36 increases the risk to prostitutes or not”, Perrin writes in the commentary. “That is a question that will be answered by evidence, based on Canadian experience – not speculation and conjecture”.
Bill C-36 further improves its chances of withstanding a constitutional challenge by allowing prostitutes to hire security guards and offer sexual services at fixed locations, which makes it legal for them to work indoors.
But there is work to be done. Perrin makes four recommendations for ensuring the success of the legislation:
- Launch a national strategy with increased funding to help prostitutes exit;
- Train police, prosecutors, judges, and service providers on the new approach;
- Target police enforcement at johns, pimps, and traffickers; and
- Monitor and conduct research on the effects of Bill C-36.
The commentary builds on a report Perrin authored for MLI earlier this year titled “Oldest Profession or Oldest Oppression? Addressing prostitution after the Supreme Court of Canada decision in Canada vs. Bedford”. Many of Perrin’s recommendations were reflected in Bill C-36.
To read the full report, click here.
Benjamin Perrin is an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute. He previously served as Special Adviser, Legal Affairs & Policy in the Office of the Prime Minister and was a Law Clerk at the Supreme Court of Canada.
The Macdonald-Laurier Institute is the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government.
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