WATCH: As the government seeks input on new prostitution laws, Vassy Kapelos reports they are racing to get new legislation in place fearing for what might happen in the meantime.
TORONTO – Two months since the Supreme Court struck down three prostitution-related prohibitions and gave Parliament one “buffer” year to come up with new legislation, prosecutors in some provinces are acting like the laws are already gone.
Prosecutors in Ontario and New Brunswick have stopped prosecuting crimes related to keeping a brothel, living on the avails of prostitution, and street soliciting.
Advocates for sex workers are pleased with the decision, but at least one MP is concerned that it’s setting a dangerous precedent.
“Basically what the provinces are doing now, is they’re cherry-picking the Criminal Code. So Canadians need to tell their elected people, keep the laws in place,” said Tory MP Joy Smith, who urged prosecutors in British Columbia to continue prosecuting the crimes. “That’s a very dangerous precedent to be set.”
Smith praised Alberta, where the deputy attorney-general issued a directive that the province would continue to prosecute prostitution-related offences within the confines of the landmark Bedford ruling.
Alberta Justice Minister Jonathan Denis said if they didn’t continue to prosecute the offences—like keeping a brothel—it would mean a “period of lawlessness.”
“It would not be unreasonable to foresee that you could see a brothel popping up in residential areas. It’s not unreasonable to see that you would even have human trafficking happening through this province,” Denis said. “And that’s not something that we’re willing to stand for in Alberta.”
British Columbia will also continue to prosecute the crimes in question on a case-by-case basis — until the federal government introduces legislation.
“I would say that the ball is clearly on the federal government’s lap to act as quickly as possible and bring in some new legislation that protects vulnerable people who are exploited as part of the sex trade,” said Denis.
And federal justice minister Peter MacKay said his department has been working to do just that: Drafting the sections of the criminal code to address the three laws “almost from the moment the Supreme Court issued its ruling.”
“We do intend to legislate in this area, make no mistake about it,” he said. “It’s not this government’s intention to leave that vulnerability, to leave that gap that was created by the Bedford decision.”
Sources tell Global News the new legislation may come as early as a few months, and MacKay suggested the legislative solution could be based on Canada’s examination of models like the Nordic model-which criminalizes the purchase but allows the sale of sexual services.
“But this will be a Canadian solution, and we believe it will withstand constitutional scrutiny, and most importantly it will protect the public.”
Sex worker advocate Katrina Pacey doesn’t think the Nordic model is the right way to protect Canada’s sex workers. She hopes the federal government will look at the court’s findings and understand their rationale for striking down the three laws as unconstitutional.
Pacey, litigation director at Pivot Legal Society in Vancouver, works closely with sex workers. They’ve told her the so-called Nordic model would continue to cost lives.
“It will continue to both put sex workers in egregious danger, at risk of very, very serious violence and murder, and create very significant human rights violations and probably land back in court,” she said. “So we hope to not have to go back to court to litigate further based on what the government proposes.”
Criminology professor Christine Bruckert said there’s no indication that decriminalizing sex work will cause an increase in prostitution, such as Alberta’s concern that brothels would be popping up on residential streets.
“New Zealand has shown us that when they decriminalized prostitution 10 years ago, there’s no evidence that there’s more brothels, more street-based sex workers,” said Bruckert, who is also a board member of POWER—a sex worker rights group in Ottawa.
She wants the government to follow through “in the spirit of the decision that was rendered in Bedford.” That’s something she doesn’t think the Nordic model can offer.
Bruckert said sex workers under that model continue to experience violence, and some in Sweden are at risk of being evicted; still being criminalized under laws besides the sex purchase act.
“It’s the same sort of harms that we see in the current system, which is why we are calling for a ‘Made in Canada’ solution that puts sex workers’ human and labour rights first,” she said.
Pacey also hopes for a shift away from criminalization to one that takes a labour and employment issue perspective. Street workers have told her that the best way the government can support their economic choices is to make sure they have support services.
“What we hope is the government will listen to sex workers…really understand that criminalization in all its forms—when it’s targeting consensual adult sex work—is nothing but purely harmful and restrictive.”
Pacey suggests using the criminal law to target specific harms already pinpointed by other Criminal Code provisions.
“Whether it’s the assault provisions, or intimidation, or extortion or trafficking, underage people that are sexually exploited…There’s a range of provisions in the Criminal Code that provide the protections that sex workers are seeking,” she said. “Laws that just target prostitution just because prostitution is taking place, is not only not helpful to sex workers, it’s extremely harmful.”
With a report from Vassy Kapelos