Writing in the National Post, MLI Senior Fellow Benjamin Perrin lauds the federal government for taking the right approach with its new prostitution law. He says the general thrust of the newly-proposed law, which places heavy penalties on johns, pimps and traffickers, will help achieve what should be the government’s goal: getting prostitutes into another line of work. Now, says Perrin, it’s up to the provinces and territories to work with the federal government on a national strategy for helping prostitutes move in that direction.

By Benjamin Perrin, June 9, 2014

Canada’s proposed approach to addressing prostitution is the right one. With some amendments and concerted action from all levels of government, police, and frontline organizations, it could help prostitutes exit and prevail in the face of an anticipated constitutional challenge.

The reality of prostitution in Canada is shocking and it’s not the bill of goods being sold by the pro-prostitution lobby on TV. Most prostitutes are women and teenage girls who entered prostitution between 14 and 20 years of age — most were sexually exploited as children. Street-level prostitutes are disproportionately aboriginal females, many tragically suffering from substance abuse. Our laws and policies must work to help them leave the misery, abuse and violence that are inherent in prostitution.

The Protection of Communities and Exploited Persons Act (Bill C-36) does something that Canada has never tried before. It recognizes for the first time in law that prostitution is inherently exploitative, denouncing prostitution as the commodification and objectification of people, especially women. Bill C-36 wants to encourage exit from prostitution while protecting communities. These are precisely the right goals. How well are they pursued?

To start with, Bill C-36 puts the responsibility for the harms of prostitution where it should be. Johns will face mandatory fines and possible imprisonment. They drive demand for prostitution. We must hope the courts consider jail time in cases where there are aggravating factors and for serial offenders. Police enforcement against johns is critical in providing for deterrence and effectiveness of the law. Police should name convicted johns, as they do generally with other offenders.

Pimps, traffickers and those who financially gain from prostitution (with some reasonable exceptions) will face serious penalties, as they should as exploiters and illicit profiteers. Restricting advertising of prostitution (with an exception for prostitutes themselves) is also a necessary part of Bill C-36 if we’re serious about reducing prostitution. So far, so good.

Where Bill C-36 gets into some potential difficulties is how it chooses to address prostitutes themselves. The government is not content to have the law leave them alone entirely, as I argue that it generally should because most are exploited. For example, Bill C-36 should repeal the existing offence in section 213(1) of the Criminal Code that seeks to punish street prostitutes for stopping traffic or impeding pedestrians, because it is very likely unconstitutional in light of the Bedford decision. The continuation of this offence on the books risks needlessly undermining Bill C-36.

However, I agree with the proposed offence in section 213(1.1) that prostitutes not be allowed to offer sex where kids could reasonably be expected to be present. This is an eminently reasonable restriction, even at night. We can’t have kids playing around used condoms. This will be for the courts to interpret. The government should, however, consider clarifying its definition of where kids could be to avoid a potential vagueness challenge. Also, the proposed penalty should be lowered for prostitutes (but not johns) to the lowest possible. Unless prostitutes can trust the police not to bother them (other than in obvious venues like on school grounds), they’re unlikely to report violence and seek help.

What about the constitutionality of Bill C-36? Formally, it responds to the Supreme Court of Canada decision in Bedford by repealing the three provisions that were struck down and are set to expire in December 2014. But how would the new laws likely fare?

To start with, the constitutional ground would shift considerably with the new and more compelling legislative purposes in Bill C-36. In pursuing these aims, targeting sex act purchasers should not be unconstitutional. Speculation that such laws would drive prostitution underground was found by a judicial inquiry in Sweden not to have materialized in a 10-year study after that country adopted such an approach.

With respect to prostitutes, adopting the amendments proposed above would not only strengthen the government’s future constitutional case, but would also prevent its objectives from being dismissed as disingenuous or inadequately connected to its chosen tactics — findings that would be constitutionally fatal.

Bill C-36 is to be applauded for recognizing that prostitution is exploitation — not a job that you’d recommend to your mother, wife, girlfriend, sister, or daughter. But for this new policy to work and comply with the Charter, implementation is critical. It’s promising that Justice Minister Peter MacKay has announced $20-million to support exit programs, but more is needed to confront this complex issue. The provinces and territories need to do their part financially and work with Ottawa on a comprehensive strategy to promote exit from prostitution and prevention. Police will need training and to devote resources to enforce the new law against johns, pimps and traffickers. Without this, the legal reforms will be for naught.

Benjamin Perrin is a law professor at the University of British Columbia and senior fellow at the Macdonald-Laurier Institute for Public Policy. He is former special advisor, legal affairs and policy in the Office of the Prime Minister.

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