There are essentially three broad responses on the table, ranging from decriminalization to complete criminalization:
Parliament could let the laws expire in a year and essentially decriminalize prostitution. This would be the preferred option of some sex workers and their advocates, who say other laws – barring, for instance, assault – are already able to handle criminal cases in the sex trade.
“My clients, and I think sex workers generally, are calling on the government to actually do nothing and just allow sex workers and the industry to be protected by the laws that remain on the books right now,” said Katrina Pacey, litigation director at Pivot Legal Society, which represented sex workers intervening in the Supreme Court case.
Doing so would leave prostitution regulation to provinces and municipalities. “What the industry is asking is to shift it away from a criminal law matter to it being a labour, employment, occupational health and safety matter,” Ms. Pacey said.
This approach, however, appears to have little support in Parliament. “We don’t believe that decriminalization will address the harms that come from prostitution,” Justice Minister Peter MacKay said in an interview this week before the court ruling. On Friday, his office said the Conservative government is looking at all ways to “ensure the criminal law continues to address the significant harms that flow from prostitution.”
Liberal MP Carolyn Bennett, responding to the ruling, agreed Canada does “need to put something in place” and not just decriminalize. NDP Justice Critic Françoise Boivin said her caucus is considering all options, including decriminalization. “I’ve got as many people who think one way as another in caucus,” she said.
Among those who oppose this model is the Women’s Coalition for the Abolition of Prostitution. “Then we have a situation that’s kind of a Wild West in which there’s no criminal law at all speaking to prostitution,” said Janine Benedet, a law professor who represented the coalition in the case.
Target johns and pimps
The so-called Nordic model, based on the experiences of Sweden and Norway, targets clients and pimps rather than sex workers themselves. It’s the model advanced by Conservative MP Joy Smith, an outspoken opponent of the sex trade.
“With the Nordic model, it does focus on the johns and the traffickers – and the predators, whether they’re women or men. That’s what I like about it,” she said in an interview, adding it needs to be tailored as a “made in Canada” version, with a focus on preventing exploitation of the “very young.”
Ms. Smith favours neither a law that targets sex workers nor full decriminalization, which she said amounts to “opening the gate. It’s like saying this is an industry we have in Canada. It’s not an industry. This is a crime against the dignity of women.”
The Supreme Court came to “pretty strong conclusions” that make tinkering with existing laws a difficult path, said Cheryl Milne, executive director of the University of Toronto’s David Asper Centre for Constitutional Rights, which intervened in the case. She expects government will consider laws that target johns and pimps.
And it’s possible to do that without violating the Charter, said Bruce Ryder, an associate professor at York University’s Osgoode Hall Law School. He expects Conservative MPs will “be able to build consensus around a new approach to criminalization of prostitution, and the prime candidate is clearly the Nordic model.” He thinks it’s the most likely outcome. However, he warned that doing so could leave Canada with stricter laws than it had before. “The sex-work prohibitionists lost in court, but they’re likely to find a more receptive audience in Parliament,” he said.
Pivot Legal Society, representing sex workers who intervened in the case, said “there’s great concern and fear of the Nordic model” being brought to Canada. “The reality is even targeting demand, targeting clients, targeting pimps, drives the whole industry underground,” said Katrina Pacey, Pivot’s litigation director.
Criminalize prostitution entirely
The make-it-all-illegal approach would see johns, pimps and sex workers alike targeted under new laws. The Supreme Court noted that “it is not against the law to exchange sex for money,” but said that’s a choice Parliament has made. “Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes,” the court found.
But that’s an option few are considering.
“It’s very hard to find a group in Canada who has any direct involvement in this issue who is advocating for criminalization of prostitution,” Prof. Benedet said. Ms. Smith, the Conservative MP, says she hears from some people calling for full criminalization, but thinks that goes too far and would punish the women.
“If you accept that premise that prostitution is worth trying to eradicate, it’s presumably because you view it as being inherently exploitative of the sellers. So it makes no sense to criminalize the people you believe are being exploited,” Prof. Ryder added.
Jamie Cameron, another Osgoode Hall Law School professor who is a constitutional scholar, said the prospect of across-the-board criminalization is not “especially realistic. Whether it’s constitutional or not is another matter.” She also stressed the court’s ruling signals any new laws must be evidence-based. “That’s been an issue with the Harper government’s legislative agenda – that much of it seems to fly in the face of evidence,” she said.
Ms. Pacey, who favours decriminalization, agrees that making prostitution itself illegal isn’t a realistic option. “The great debate in Canada, in my view, or the most active debate, is between the Nordic model and a decriminalization model,” she said.