Canada's Justice Minister, Peter MacKay, says the government did not seek any outside advice on whether its new prostitution law would pass a constitutional challenge – and it shows. On the most basic level, the bill does not solve the very problem it was supposed to.
The Supreme Court had struck down the old prostitution laws because it found they violated the constitutional rights of prostitutes to "security of the person." Instead of proposing a new, safe, sensible framework under which sex can be bought and sold, Bill C-36 amplifies what made the old rules dangerous. It criminalizes the buyers of sex and places the seller in jeopardy by forcing the entire transaction underground. That is why it is unlikely the bill would survive a constitutional challenge – a prospect so likely that even Mr. MacKay called it "as sure as night follows day."
However, prostitutes and pimps aren't the only ones affected by the awkwardly named Protection of Communities and Exploited Persons Act. Publishers are as well. The law makes it illegal to advertise the offer of sexual services from another person – on pain of 18 months to five years in prison.
For newspapers, classified ads generate a significant chunk of advertising revenue – roughly 14 per cent in 2012, according to Newspapers Canada. For weekly papers, which tend to carry more explicit ads than their daily counterparts, that proportion is much higher. As the newspaper industry struggles to generate new revenues, for some, the evaporation of sex ads would be a serious blow.
The government says the goal of the ban is to prevent third parties, like pimps, from profiting from sex work. The law does not apply to prostitutes advertising sexual services on their own behalf, it says. But there is an inherent contradiction. Under the bill, a prostitute could legally advertise the offer of sexual services directly, but it prohibits him or her from doing so if the advertisement could be seen by anyone under the age of 18. In effect, that bans prostitutes from advertising their services pretty much anywhere – in print or online.
Sure, prostitutes can sell sex, but their clients cannot legally buy their services. Yes, prostitutes can advertise their services, but nowhere a legitimate buyer can easily look. Like the rest of Bill C-36, the section that bans sex ads is illogical. It would drive prostitution further underground and place sex workers in more dangerous circumstances than ever.