Prostitution inertia may lead to charter challenge
For a self-proclaimed progressive government, with a declared feminist prime minister, it is beyond odd that the Liberals have not moved to repeal the Conservative prostitution law, drafted hastily after the Supreme Court struck down the existing law in 2013.
Department of Justice sources admit such a law is unlikely to see the light of day before the next election. That has set the Liberals on a collision course with their erstwhile allies in the legal and sex worker communities.
Pivot Legal Society, set up in Vancouver to represent the marginalized and disenfranchised, says it will decide whether to launch a fresh constitutional challenge by the end of next month. The Canadian Alliance for Sex Workers Law Reform says it is “losing patience” with the Liberals.
“It’s not a political winner, but we have a Supreme Court decision that gave sex workers rights and they need to be upheld,” said Jenn Clamen, a coordinator at the Alliance.
The problem is that the Conservative prostitution law replicated the criminalized environment the Supreme Court decision blew up.
In the Bedford decision, the court ruled that the existing law infringed on the rights of sex workers under the section of the charter dealing with security of the person. It struck down provisions of the Criminal Code that made it illegal to communicate for the purposes of prostitution; to run a brothel, and to live off the avails of prostitution.
The court gave the Harper government 12 months to come up with a new law, and it duly rebuilt some of the old laws and introduced a new component — criminalizing the buying of sex.
The criminal prosecution focus shifted — stats suggest prostitution incidents fell from an average of 2,800 a year prior to the new law to just 219 in 2016, while “commodification of sexual activity” incidents (prosecution of pimps and johns) rose to 708.
But crucially, the new law continued to criminalize the industry and drive its workers underground.
“We won, but then victory was immediately taken away,” said Kerry Porth, a former sex worker and a board member of Pivot, which intervened in support of the plaintiffs in the Supreme Court case.
Many advocates of reform placed their hopes in the Liberals to repeal legislation that constitutional experts like Alan Young, an Osgoode Hall law professor who led the charge against the old law, deem “misguided” and unconstitutional.
After all, the Trudeau government has pushed its feminist credentials — this week, it announced $20 million will go to gender-based violence services.
During the 2015 election, Justin Trudeau said the Conservative law has made things worse, “which is why we voted against it.” Yet after one roundtable in Vancouver last May, consultations with stakeholders stopped.
The official line is that Justice Minister Jody Wilson-Raybould is committed to reviewing the Conservative law and responding to all issues raised by the Supreme Court.
But the minister has a full plate — including responding to the Jordan decision over unreasonable court delays. The repeal of the Conservative prostitution law is not in the mandate letter she received from the prime minister and officials are open that legislation will not be forthcoming “in the short term.”
The foot-dragging has led Pivot to look at another charter challenge.
Porth says there are problems — including finding plaintiffs. “The Bedford case took a real toll on the plaintiffs — it took seven years to get to the Supreme Court,” she said.
But she said things are not getting better for sex workers and that rates of violence remain the same or have worsened. Clamen said her organization documented the murder of 10 sex workers in 2017.
The simple truth behind the official inactivity is that there are few votes to be won on the issue.
“There’s no question people don’t like it — it provokes a strong emotional response,” said Young. “It’s easy to put your head in the sand.”
He said he would challenge the law if he had the will. “There are lots of reasons — it was done precipitously; it’s not being enforced, and it doesn’t commit to equality,” he said. If the Liberals are not going to follow through on their own commitment, it would be good if the status quo were challenged.
As Young pointed out, the current law doesn’t work and has never fulfilled the Supreme Court’s ruling on security of persons. It compounded that oversight by targeting men with its commodification offences.
There’s a flimsy public interest excuse in the state interjecting itself into the consensual affairs of grown-ups. It wastes police and court time and the law should be struck down in favour of decriminalization.
Given the controversial nature of the subject matter, a solution may yet emerge from an unlikely source. Last week at a Liberal caucus gathering in London, Ont., MPs voted for a resolution on decriminalization that will be considered at the party’s policy convention in Halifax in April. The minister should listen to her colleagues and draw up legislation post haste.