TORONTO – It’s been just over three months since the Supreme Court struck down three prostitution-related prohibitions and gave Parliament one “buffer” year to come up with new legislation – but whether brothels will become neighbourhood staples is yet to be seen.
The three laws that were struck down were keeping a brothel, living on the avails of prostitution and street soliciting. Even though they were deemed fundamentally unjust, they’ll stay in the Criminal Code until Dec. 19, 2014—though some provinces are acting like the laws are already gone.
So if Parliament does nothing, will bawdy houses pop up on residential streets?
Osgoode Hall Law School professor Alan Young—who represented Terri-Jean Bedford et al. in the ruling—said if the federal government fails to enact laws, the provinces could step in.
“It becomes very much like gambling where it was delegated to provinces to decide what they want or do not want,” said Young.
And a more customized approach has its benefits, according to Young’s Osgoode colleague Benjamin Berger.
“Municipal responses and local responses are just so much more flexible and nimble than the sorts of responses that the criminal law affords,” said Berger.
Prostitution: What’s the best way to control an activity often described as the “world’s oldest profession”? Will doing nothing lead to brothels in your backyard? Or is it time for the government to “get out of the bedrooms” of the nation?
Join the conversation with host Jeff McArthur on Monday, March 31 at 7 p.m. ET as Canadians talk prostitution on the Corus radio network.
- AM640 (Toronto), CHML (Hamilton) and AM980 (London) from 7-9 p.m. ET
- CJOB (Winnipeg) from 6-8 p.m. CT
- NewsTalk770 (Calgary) and CHED (Edmonton) from 5-7 p.m. MT
- CKNW (Vancouver) from 4-6 p.m. PT
This is part of a series of special conversations on-air and online about the issues that matter to all Canadians.
Tory MP Joy Smith was critical of prosecutors in Ontario and New Brunswick who stopped prosecuting the prostitution-related crimes following the Bedford decision, and said Canadians expect the laws to be used “the way they’re supposed to be used.”
“Basically what the provinces are doing now, is they’re cherry-picking the Criminal Code,” said Smith in a February interviewed. “That’s a very dangerous precedent to be set.”
Alberta has continued prosecuting the crimes in an effort to avoid a “period of lawlessness,” according to the province’s justice minister Jonathan Denis.
That’s just what federal justice minister and attorney general Peter MacKay says is happening.
MacKay’s press secretary cited a “month-long online consultation process” and an “in person consultation from a cross section of stakeholders” as the process by which the feds will make sure their response reflects Canadians’ values in a Friday statement. She said a summary report will be made available, but didn’t provide a timeframe. The consultation closed March 17.
When it comes to Canadian values, Young suggests there’s a sharp division.
“Canadians have a split between people who question government and then what Canadians are known for – deference to government.”
He said he’s worked hard to establish Pierre Trudeau’s 1968 election campaign point—that government should stay out of the bedrooms of the nation.
“We did remove ourselves from the bedroom of the nation by decriminalizing homosexual activity,” said Young. “But that’s about as far as we went … No one ever really considered whether Trudeau’s idea should be applied to the sex work issue.”
MacKay has previously suggested the 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 sex worker advocates and law experts alike see problems with that response.
“If the issue is the presence of the police drives people into back alleys and underground, and if you know communication requires two people, then whether you criminalize one half of that or the other half of that, you’re still going to drive it underground,” said Berger. “It tends to replicate exactly the harms that the Supreme Court said were problematic with the existing legislation.”
“Anything you drive further underground is less secure,” added Young, who said any new approach has to be consistent with the Bedford court case, or Parliament would be “setting themselves up for another successful challenge.”
Sex worker advocates like Pivot Legal Society’s litigation director Katrina Pacey believe the government ought to take a labour and employment perspective on the issue and provide support services to those who choose to become involved in prostitution.
“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 in February. “Laws that just target prostitution just because prostitution is taking place, is not only not helpful to sex workers, it’s extremely harmful.”
And what about the total criminalization of the so-called “world’s oldest profession”?
“It just seems like the sort of activity for which eradication is not a reasonably attainable goal,” said Berger.