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Benjamin Perrin

Benjamin Perrin

Benjamin Perrin

How the new prostitution law can withstand a Charter challenge Add to ...

Benjamin Perrin is a law professor at the University of British Columbia, former special adviser for legal affairs and policy in the Prime Minister’s Office, and a senior fellow at the Macdonald-Laurier Institute.

On Oct. 7, police announced that “Operation Northern Spotlight” had rescued 18 women and under-aged girls (as young as 12 years old) who had been forced to work as prostitutes in cities across Canada. All it took was two-days of police officers treating them respectfully and not threatening to prosecute them. Dozens of charges are now pending against their alleged pimps and sex traffickers.

This successful approach taken by police isn’t what the current Criminal Code suggests – none of the prostitutes were charged after all – but it was the right thing to do. It’s exactly what is called for under Bill C-36 (Protection of Communities and Exploited Persons Act). This new legislation that was just passed by the House of Commons is expected to become law in weeks.

Bill C-36 recognizes prostitution as inherently exploitative and harmful. It seeks to discourage prostitution by promoting exit from prostitution while holding johns, pimps and traffickers criminally responsible. With Bill C-36 poised to become law, two questions arise. First, what is needed to ensure its effective implementation? Second, can Bill C-36 withstand a Charter challenge?

Moving forward, the federal government needs to work with provincial and territorial governments to:

- Launch a national strategy with increased funding to help prostitutes exit;

- Train police, prosecutors, judges, and service providers on the new approach;

- Target police enforcement at johns, pimps, and traffickers; and

- Monitor and conduct research on the effects of Bill C-36.

While the federal government is responsible for enacting criminal laws, our provincial and territorial governments are responsible for policing, victim services, prevention programs, and social services. Drug detoxification facilities, mental health services, welfare, vocational and educational training, and a raft of related programs are needed for a person to exit prostitution.

The federal government has devoted $20-million to help implement Bill C-36. Provincial and territorial governments also need to step up with new funding. By comparison, Sweden’s national action plan to address prostitution and human trafficking received 213 million Krona ($32.2-million). To account for Canada’s larger population, that would be approximately $118.6-million – almost $100-million more than has been committed to date to implement Bill C-36.

A lot has been written about whether Bill C-36 is constitutional. The truth is it depends on how effectively it is implemented and when a case is brought forward. Actual evidence – not speculation – will need to be marshalled, and that will take time for both sides. Indeed, the imminent Charter challenge to this new legislation that advocates of legalized/decriminalized prostitution have threatened could very well be premature. For good reason, the Court has dismissed challenges to laws that have not yet been adequately tested in practice.

On the merits of a Charter challenge, Bedford was clear that Parliament can adopt a new approach and set “limits on where and how prostitution may be conducted”, however it cannot increase the risks faced by prostitutes in a way that is overly broad or grossly disproportionate to the law’s objectives. For example, Bill C-36’s restriction on prostitutes offering sexual services next to a school, playground or daycare centre is very likely to be acceptable.

Importantly from a Charter compliance perspective, the safety-enhancing measures that were flagged by the Court in Bedford as being necessary are now generally available through Bill C-36. Prostitutes will be able to work indoors and hire legitimate bodyguards. They’re also given a range of immunities from prosecution.

There has been debate about the extent to which prostitutes will be able to “screen” clients under the new law – johns will face mandatory fines and the possibility of jail time for their role in driving demand for prostitution. Some claim that johns will try to pressure prostitutes to quickly leave public view, such that screening is not possible. While the concept of screening is tenuous, the Court in Bedford said its concern is about laws that prevent prostitutes “from taking steps to protect themselves”. For that reason, existing offences in section 213 of the Criminal Code that punish prostitutes for stopping vehicles or impeding pedestrians should have been repealed in Bill C-36 since they inhibit screening. However, criminalizing johns alone would not prevent prostitutes from taking steps, such as screening those johns, to protect themselves. The potential nominal monetary loss to a prostitute of losing a skittish john who won’t wait for the prostitute to screen him cannot legitimately be a basis for claiming that the prohibition on the purchase of sexual services increases the safety risk to prostitutes.

Bill C-36 marks a turning point in Canada’s approach to addressing prostitution that seeks to encourage prostitutes to exit, while holding johns, pimps, and traffickers criminally responsible. It holds much promise but will only have a positive impact if it is effectively implemented and monitored in the coming years.

Benjamin Perrin is the author of the Macdonald-Laurier Institute report “How to make Canada’s new prostitution laws work.”

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