'It is not a crime in Canada to sell sex for money." That's the first line of the Supreme Court's Bedford decision, which last December struck down Canada's prostitution laws. It bears repeating, again and again, because so much of what is tying the government and the opposition in knots, as they try to craft a new law, turns on that key fact.
The old rules said that selling and buying sex was legal – but the Criminal Code regulated the time, place and manner of the transaction. It was a crime for a prostitute to have a steady place of business in a home or office; the law called this "keeping a common bawdy house." It was also against the law for a prostitute to be an employee, or even an employer of someone like a receptionist or bodyguard – this was known as "living off the avails" of prostitution. And though it was perfectly legal to advertise sexual services through a newspaper or on the Internet, it was a crime to communicate for the purposes of selling sex in a public place.
(What will be Canada's new prostitution laws? Read The Globe's easy explanation)
The Supreme Court said those rules were too restrictive, endangering the life, liberty and security of sex workers. The court said the laws were making a dangerous job more dangerous, and doing so without constitutional justification. The Criminal Code, said the court, was being used to increase the hazards of a legal job. Imagine if it was a crime for a construction worker on a skyscraper to wear a safety harness. Imagine if bus drivers faced prosecution unless they wore dark sunglasses when driving at night. Or, as the court put it, imagine "a law preventing a cyclist from wearing a helmet."
But the court, while striking down the old law, was clear that Parliament has room to pass a new one. It has lots of leeway. "Parliament is not precluded from imposing limits on where and how prostitution may be conducted," the court said, "as long as it does so in a way that does not infringe the constitutional rights of prostitutes." The law doesn't have to make life easier for prostitutes, said the court. It just can't have the effect of making a hazardous profession that much more so.
Which brings us to where we are today. On Tuesday, the Commons justice committee adopted a number of small changes to the bill, before sending it to the Commons this fall. A few things changed; the big picture did not.
When the government tabled Bill C-36 in June, its problems were obvious. The proposed law echoes the so-called Nordic model, used in countries such as Sweden, where selling sex is legal – but buying it is a crime. The bill takes a transaction that is currently legal in Canada and makes it illegal, at least on one side. The goal is to reduce the demand side of the equation. The trouble is, outlawing one side of the transaction will have an impact on both sides. Prostitution will get pushed into the shadows, where sex workers face precisely the kinds of danger the Supreme Court warned about. Many legal experts think the government's proposed new law will ultimately get struck down for the same reasons that grounded the old one.
On Tuesday, the Commons justice committee ditched an overbroad clause that would have made it a crime to sell sex anywhere children might be present, and replaced it with a more targeted ban on selling near a school, playground or daycare. But buying sex, anywhere, is still a crime under the bill. Advertising in a community newspaper or on Internet sites also appears to be banned – again, that's much more restrictive than the old law, and would seem to make it harder for prostitutes to do their jobs safely.
But for all of its flaws, the Conservatives' Bill C-36 at least attempts to fill the legal void left by the Supreme Court's ruling. That is more than we can say for the Liberals' or the NDP's efforts. Both parties have been quick to criticize what's on the table, and with good reason. But they have failed to offer a comprehensive counterproposal. The New Democrats have pushed a number of amendments to C-36; the Liberals have proposed none. Neither of the two main opposition parties has put forward an alternative bill, or much of an alternative philosophy.
Canadians should expect more from the opposition. Both the NDP and the Liberals claim to be a government-in-waiting. The former is the Official Opposition; the latter lead in many national polls. Both parties have had months to formulate alternatives to the government's approach, though it's hardly difficult to deduce why they haven't: Prostitution is a lightning-rod issue. Polls show most Canadians support the government's approach, even if it is likely to be unconstitutional.
But there are alternatives to what the Conservatives have proposed. In the Netherlands, prostitution is legal and regulated. In New Zealand, prostitution is legal, but the coercion of sex workers is a crime. Both models aim to reduce harm and deserve debate. Unfortunately, we're having a debate that has so far been more noise than substance, and more politics than policy. And it's not just the government that's to blame.