- James Anderson
Canada’s new anti-prostitution Bill will do little or nothing to protect women
Updated: Apr 22, 2020
Back in December of 2012, the of Supreme Court of Canada in Canada (Attorney General) v. Bedford, 2013 SCC 72, unanimously decided that the existing Criminal Code provisions related to prostitution were unconstitutional (i.e., they violated the Charter). In response, the Minister of Justice, Peter MacKay, introduced Bill C-36 (The Protection of Communities and Exploited Persons Act) on June 4, 2014. He characterized Bill C-36 as a "made in Canada" approach to the complex issue of how to address sex work. In short, the Government of Canada will only criminalize buying sexual services and not selling sexual services.
Back in July of 2012, the United Nation Global Commission on HIV and the Law released their final report. The Commission looked at, among other things, three highly stigmatized and often criminalized groups: men who have sex with men, injection drug users, and sex workers (see pages 36-43 for the chapter on sex workers). Their report urges governments to decriminalize these groups or these behaviours, and encourages countries to fully realize their human right to health, including their sexual health.
As the name of the Bill suggests, the government is framing it as providing protection for exploited persons. But in my opinion, it will do little or nothing to help protect women. In fact, this so called "made in Canada" approach is very similar to the Swedish model which was criticized by the UN Global Commission on HIV and the Law. Their report, on page 38, says:
the ‘”Swedish approach” criminalises the client and not the worker. Based on the premise that women in sex work need protection, it regards the sex worker as the “victim” and the client as the “exploiter”. Since its enactment in 1999, the law has not improved—indeed, it has worsened—the lives of sex workers.
Below is my summary of Bill C-36:
1. Stopping/Impeding traffic: It is an offence to offer, provide or obtain sexual services for consideration (i.e., money) in a public place or in any place “open to public view”. Peter MacKay used shopping malls as an example.
2. Communication: It is an offence to communicate – for the purposes of offering or providing sexual services for money – in a public place near or next to where it is reasonable to expect someone who is under the age of 18 to be present. Reporters asked Peter MacKay, what about at 3:00 am in a residential neighbourhood when everyone is sleeping. He simply repeated the language in Bill C-36, “any where it is reasonable to expect someone who is under the age of 18 to be present”. Note: This provision criminalizes both the sex worker and their clients.
3. Buying sex: It is an offence to buy sex in any "place". It is also an offence to communicate about buying sex in any "place". Note: It is not clear whether picking up the phone and calling an escort agency is communicating about buying sex in a "place" or not.
a) Exception (for yourself): It is not an offence to aid, abet, conspire or attempt to get someone to buy your sexual services. (This exception tries to make it clear for police that the Government is not criminalizing selling sex, only buying sex)
4. Benefiting from selling sex: It is an offence to receive financial or other material benefit from the offence of buying sexual services.
a) Exception (for yourself): Receiving financial or other material benefits from selling your own sexual services is legal (in other words, selling sex is legal).
b) Presumption: Anyone who lives with or is habitually in the company of someone who sells sex is presumed to benefit from the offence of buying sexual services. This is rebuttable with evidence to the contrary.
c) Exception to the presumption: Those that are in a “legitimate relationship” with the person who sells sex or have “legal or moral obligation” with the person who sells sex (e.g., dependent child, or perhaps even a dependent adult), and those that provide services/goods generally to the public (e.g., pharmacists, retailers, etc).
5. Procuring: Procuring someone to provide sexual services to others (classic pimping) is illegal. In fact, it is illegal to facilitate the offence of buying sexual services - in other words, so helping a john find a sex worker would be considered procuring.
6. Advertising: Advertising sexual services (of others) is illegal. However, it is legal to advertise your own sexual services.
a) Exception (for yourself): It is not an offence to aid, abet, conspire or attempt to get someone to advertise your sexual services.
b) Immunity: This provision is confusing, but I think newspapers/websites/etc are immune from aiding, abetting, conspiring, attempting, or being an accessory after the fact, if the advertisement is for the sex worker’s own sexual services.
And of course, all of these offences are stricter if they involve people under the age of 18.