The federal government’s prostitution bill is vulnerable to a constitutional challenge, a Canadian lawyers group says – a warning that comes as Justice Minister Peter MacKay revealed the government wrote the bill without outside legal opinions but expects it to pass muster.
MPs returned to Ottawa Monday for hearings on Bill C-36, tabled after the Supreme Court struck down Canada’s existing prostitution laws seven months ago because they violated the Charter rights of sex workers. Monday’s testimony included calls to amend or scrap the bill entirely, including those from sex workers’ rights advocates, and support of the bill. C-36 largely criminalizes the purchase of sex, rather than the sale, but also places restrictions on where sex workers can advertise or solicit clients.
Much of the debate dealt with the bill’s constitutionality. Mr. MacKay, who on Monday dismissed calls to refer the bill pre-emptively to the Supreme Court, said he’d sought no outside legal opinions on the matter but repeated his insistence the bill is Charter compliant, a position backed up by a top official in his department.
“The bill specifically deals with the safety deficiencies the Supreme Court found in the existing law,” Donald Piragoff, the senior assistant deputy minister in the Department of Justice’s policy section, told MPs Monday.
The question of Charter compliance looms large in that it would leave the government once again rewriting the law. Leonardo S. Russomanno, speaking on behalf of Canada’s Criminal Lawyers’ Association, told the committee the bill is vulnerable to a challenge.
“It really comes down to whether [C-36] would survive a section one [Charter] challenge. And, in my view, it would fail to do so on the basis it’s not proportionate at all,” Mr. Russomanno told MPs, adding the bill will drive sex workers underground and “utterly fails” to protect them.
Others supported the bill, including Timea Nagy, a former sex worker who now works with Walk With Me Canada Victim Services. “I speak for the vast majority of people in the sex trade for whom this is not a freely made choice,” she said. Other advocates for sex workers oppose the law, with one sex worker, Émilie Laliberté, telling MPs the bill “does not respect our constitutional right to life, security and liberty.”
During testimony, Tory MP Robert Goguen sought to use Ms. Nagy’s experience– she told MPs she was once raped by three men – to fire back at Mr. Russomanno’s Charter warnings.
“Let’s suppose the police authorities would have broken in and rescued you. Would your freedom of expression have been in any way breached?” Mr. Goguen asked Ms. Nagy. “...What I’m saying is, you weren’t freely expressing yourself by being raped by three men.” Ms. Nagy said she would not have considered her Charter rights breached, but Mr. Goguen was nonetheless criticized after making the comment.
Manitoba’s Justice Minister, Andrew Swan, supported the thrust of the bill but called for some amendments, and asked government to boost its pledge of $20-million in funding to help sex workers leave the industry.
Mr. MacKay was among 18 witnesses who spoke to the committee Monday and said a legal challenge is likely. “I predict there are those who disagree with this approach, so they may very well choose to challenge the law. It’s not uncommon, put it that way,” he told reporters.