New prostitution bill criminalizes purchase of sex, limits where sex can be sold

WATCH ABOVE: Justice Minister Peter MacKay on why a new bill would criminalize the purchase of sex, and under what conditions sex workers would also be charged

TORONTO – New prostitution legislation tabled by the federal government Wednesday in response to a December Supreme Court decision will criminalize the purchase of sexual services, and the sale of sex in certain places. But many sex worker advocates believe the newly proposed law is worse for the safety of sex workers than the past provisions already struck down as unconstitutional.

“We are focusing on going after the pimps, the johns, the consumers and at the same time providing what we hope will be effective off-ramps, exit ramps from prostitution as a practice,” said justice minister Peter MacKay Wednesday afternoon.

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However, MacKay said sex workers could be charged if they are selling sex in a public place where you could “reasonably expect” children to be present.

“We are criminalizing the purchase of sexual services and in very specific instances the sale or communication of services in areas where young people under the age of 18 could be present.

“So public places as defined by the Criminal Code: malls, recreation centres, neighbourhoods…where children could reasonably expected to be present,” he said.

Pivot Legal Society’s litigation director Katrina Pacey thinks the new bill is worse than Canada’s laws prior to the Bedford ruling. (The old laws deemed prostitution itself legal but made criminal almost all related activities, including keeping a brothel, living on the avails of prostitution, and street soliciting. The landmark decision upheld the sex workers’ human rights to work and health by acknowledging how those criminal provisions contributed to unsafe working conditions).

“I think the law that prohibits the purchase of sex will drive the whole industry underground, will force street-based sex workers into dark and isolated parts of our city, will make indoor sex work virtually impossible,” said the Vancouver-based sex worker advocate.

“My name is the Bedford in Bedford v. Canada,” said retired dominatrix Terri-Jean Bedford following the Supreme Court ruling. (Photo by: Aaron Vincent Elkaim/ The Canadian Press). Aaron Vincent Elkaim/ The Canadian Press

“I think the provision that criminalizes street-based sex work in any place where someone under the age of 18 may reasonably be present will mean the police have complete freedom to target street-based sex workers.”

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When asked whether bodyguards or managers would be prosecuted, MacKay said the test would be whether the person is exploiting the sex worker.

“If they’re not exploiting the individual, they would not be considered criminal.”

But Pacey says this will depend on the police’s interpretation of the sex worker’s circumstances, and is both unnecessary and potentially harmful.

“There’s a real risk that it will be applied and capture all sorts of relationships that sex workers do not define as exploitative and are in fact the relationships the sex workers are seeking,” she said.

The bill also says if prostitutes who are under 18 years of age are “in the presence of one another and selling sexual services, they will be subject to arrest.” MacKay said a prostitute working at home with children could also be charged if police provide evidence that those children are being negatively affected.

READ MORE: What Canada’s prostitution laws could look like in 2015

The new law would also prohibit advertising for the sale of others’ sexual services online or in print.

MacKay said the government will work with provincial partners and compassionate organizations to form an exit strategy for prostitutes to leave their industry; the government will provide $20 million to aid in this process, including funding for “safe alternatives” related to housing, child support, education and skills training.

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READ MORE: Canadians split on sex worker policy, survey says

Lawyer in the Bedford case Alan Young said in a past interview if the new legislation isn’t consistent with the court decision, the government will be setting themselves up for another successful challenge.

Young said many people believed the government will propose something akin to the Nordic model, which criminalizes clients and third parties but not prostitutes. He said that policy doesn’t address the security issue at the heart of the Bedford decision.

“Simply by attacking the johns you’re not making anything safer for the sex workers, and in fact you’re driving the trade further underground…and anything you drive further underground is less secure,” said Young in a March interview.

“So I don’t think the Nordic model would pass constitutional muster so I don’t see it on the table, quite frankly, but it’s a weird government so it’s hard to know.”

READ MORE: What’s the best way to regulate prostitution in Canada?

Pacey said the law proposed Wednesday directly contravenes the Bedford decision.

“I think drafting legislation that looks so much like what was just struck down…I think it’s unlikely they don’t expect it to go back to court.”

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