The Conservative government is answering a Supreme Court ruling that struck down prostitution laws with a tough new law that would ban the selling of sex anywhere that people under 18 are found, or in advertisements – raising questions about how sex workers could safely ply their trade.
Police would be given new powers to search for and seize advertising materials for the sale of sex, a provision that could be used to raid escort services, which now operate virtually in the open.
And from steep fines to jail sentences as high as five years, the government would try to send a message to johns that buying sex is a crime. But the law also has potential jail sentences of up to five years for sex workers who advertise.
The law, under which pimping is still a crime, continues the Conservative government's tough-on-crime theme, including mandatory minimum sentences, longer maximums and protection of children and communities. The government also promised $20-million to support services aimed at getting prostitutes, whom the government appears to view as victims, out of sex work.
"This is sending a strong signal that we want to protect our communities and places where we raise our children," Justice Minister Peter MacKay said after the government introduced the new law in the House of Commons.
He called the mixed approach of supports and punishments the "Canadian model," an alternative to the decriminalization approach favoured by Germany, and the Nordic model of criminalizing only the johns. It must be debated and voted on before it takes effect.
Battle lines were drawn quickly. Evangelical and pro-family groups and conservative thinktanks such as the Macdonald-Laurier Institute applauded the new bill.
"Prostitution is inherently harmful," said Benjamin Perrin, a senior fellow at the Macdonald-Laurier Institute. "Exiting prostitution is the only way to truly protect prostitutes. This law will support exit."
But sex workers and their legal advocates said the law would be vulnerable to a constitutional challenge on many fronts.
"Like any other business, we go where our clients are," said Valerie Scott, one of the three sex workers who successfully challenged the old laws. "The clients are going to have to go into dark, out-of-the way alleys, and that's where the sex workers are going to go. It's easy to see how this will be problematic." She said she is "chomping at the bit" to challenge the new law's constitutionality.
Alan Young, who teaches law at Osgoode Hall Law School and led Ms. Scott's legal fight, said the new law raises similar safety concerns.
"You can't advertise, and now you've got to make this demographic decision about what areas of the city are not occupied by young people," he said. "It still raises the question of what is a safe forum for someone to legally sell sexual services."
In December, the Supreme Court struck down bans on street soliciting, bawdy houses and living off the avails of prostitutes. The unanimous court said those laws put sex workers in severe danger, citing the serial murders of Robert Pickton in British Columbia as an example. It also said the harm caused by the laws was out of proportion to the aim of trying to deter a social nuisance.
How much the government ceded to the Supreme Court's safety concerns is a matter of dispute. The government would ban "indecent activity" rather than sex in bawdy houses. It would continue to criminalize pimps, but allow the hiring of accountants and bodyguards. And while it would partly ban street solicitation, its bans on advertising and enhancement of police powers would also extend the criminal law's reach.
At the same time, however, the government rewrote the law's purposes in a way that judges hearing any future constitutional challenge would need to keep in mind: promoting human dignity and equality, and protecting children and communities.
"That's just talk," Angela Campbell, a McGill University law professor, said, adding that the law still seems intended to protect communities from nuisance.
NDP justice critic Françoise Boivin said the proposed legislation raises potential constitutional issues around security and freedom of expression. "I can just picture a sequel: We will live Bedford No. 2, definitely." (Terri-Jean Bedford is the sex worker whose name was on last year's precedent-setting case.)