The law on prostitution has become the latest battleground between the Conservative government and the Supreme Court.
In a year when the government has suffered overwhelming losses at the country's top court, and Prime Minister Stephen Harper has publicly taken to task Supreme Court Chief Justice Beverley McLachlin, Ottawa raised the stakes by introducing a tougher law on prostitution than the ones struck down last year.
The court was unanimous: laws that banned street soliciting and bawdy houses put sex workers at risk of grave harm and were out of proportion to the aim of protecting neighbourhoods from a nuisance, and therefore unconstitutional. But the court did not tell the government how to reform its approach; nothing was directly ruled out.
"So the government took that bet, that challenge," University of Ottawa law professor Carissima Mathen said, and set out to ban the commodification of sex itself, while also stating a higher-order purpose: protecting women, children and communities from being exploited and degraded.
Chief Justice McLachlin has spoken often of the "dialogue" between the court and Parliament. When a court strikes down a law, it is not the last word; Parliament drafts a new one. But that notion of dialogue took a new turn this week.
"I see this as more of a monologue than a dialogue," University of British Columbia law professor Joel Bakan said. The proposed new law, which still must be debated and voted on before it takes effect, "putatively meets some of the Supreme Court's specific concerns, while at the same time it contradicts their overall concern" about the safety of sex workers, he said.
In the old prostitution laws (those rejected by the Supreme Court), soliciting sex as a buyer or seller on the street was banned, in keeping with the anti-nuisance purpose. In the new laws, advertising sexual services is banned, in keeping with the aim of preventing degradation.
The Supreme Court ruled in a 1990 case that, even though the sale of sex was legal, the right to communicate about it had less value under the Constitution than other forms of expression, said Richard Moon, who teaches law at the University of Windsor. But after last year's ruling, the value of the right to advertise "may be greater because it is not just about the sale of sexual services – it is also about enabling sex workers to operate in a safer way," leaving the new law open to a challenge on that ground.
A sex worker would not be prosecuted under the new law if she advertises herself. But those who post a prostitute's ads on websites or in newspapers such as Toronto's Now (which has 11 pages of sex-related ads in its latest issue) could be charged, and face fines or jail sentences. And because potential clients might never find a lone blogger's website, sex workers would have to advertise on better-known sites, which would be illegal if the law passes.
The Canadian government said it is setting aside $20-million for support services to help prostitutes get out of sex work. Justice Minister Peter MacKay said that, in the government's view, prostitutes are victims, and the new law would protect them.
But advocates for sex workers say the advertising ban would drive sex workers from the relative safety of their homes or places where they can gather in groups – and where clients can be screened – to the streets. And a ban on selling sex where people under 18 could reasonably be found would drive sex workers further away, to dark, industrial zones.
The new law "is a gift to predators," said Jean McDonald, executive director of Maggie's Toronto Sex Workers Action Project.