How Bill C36 makes things worse.. and why that might be Constitutional...

[Miss Jessica Lee 43328]

what an incredibly thought provoking perspective.

 

http://www.gauntlet.ca/2014/06/how-bill-c-36-makes-things-worse-for.html

 

 

How Bill C-36 Makes Things Worse for Prostitutes, And Why That Might Be Constitutional

The Background

 

The Supreme Court of Canada said that the prohibition on brothels and the prohibition against

communicating for the purpose of prostitution, and the risks to the security of the prostitutes that arose from those provisions, were grossly disproportionate responses to the public nuisance of prostitution in public. The Supreme Court of Canada also said that prohibiting living off of the avails of prostitution was overbroad, in that it caught some people who were not exploiting prostitutes, like cab drivers and pharmacists. The Supreme Court ruled all three sections unconstitutional violations of prostitutes' section 7 Charter right to security of the person.

 

The Supreme Court gave the government one year to re-write the laws.

 

The News

 

Yesterday, Justice Minister Peter McKay introduced Bill C-36.

 

Here is what the legislation does with regard to protecting the safety of prostitutes while avoiding their exploitation and public nuisance.

 

It will be illegal to purchase sexual services.

It will be illegal to communicate for the purpose of purchasing sexual services.

It will be illegal to communicate for the purpose of selling sexual services in a place that might have children nearby.

It will be illegal to advertise sexual services other than your own.

It will be illegal to profit exploitatively from the purchase of someone else's sexual services.

This would mark the first time in Canada's history that the purchase or sale of sexual services will be criminalized.

 

The government suggests that by this they will target the "perverts" (johns) and protect the "victims" (prostitutes). As long as they don't do it near kids, and as long as they do it alone, nothing that the prostitute does will be illegal. Therefore, the government logic goes, they should feel safe going to the police for help.

 

Bill C-36 follows SCC on Living off the Avails

 

The Supreme Court said that the "living off the avails" provision was overbroad. I think the government has narrowed it considerably, making exclusions for people who live with prostitutes, people who are providing services to prostitutes that they would provide to anyone else, people who are legally or morally obliged to provide services to prostitutes. Bodyguards, receptionists, these people are now not breaking the law if they know their client is a prostitute. It seems the intent of the SCC has been respected there.

 

Bill C-36 Makes Things More Dangerous for Prostitutes, not Less

 

The Supreme Court also said that the dangers associated with prohibiting prostitutes from communicating for the purpose of prostitution were not justified for the benefit of avoiding a public nuisance.

 

The government has responded by making all communication near kids and all communication for the purchase (not the sale) illegal. So prostitutes are now legally permitted to communicate with johns, but those johns remain prohibited from communicating with them. The conversation, therefore, is still illegal. But only the john has any legal risk. This should work really well to protect prostitutes' safety, so long as the johns don't have any problem with going to jail.

 

With regard to brothels, they are no longer prohibited. However, all of the conversations and transaction that would happen in the brothel are criminalized. And a brothel, by its nature, tells the police where these crimes are happening. Again, this should work really well to protect prostitutes' safety, so long as the johns don't have any problem with going to jail.

 

If, as one might expect in the real world, johns are not interested in going to jail, then they will not be interested in communicating in places that are safe for the prostitutes, and they will not be interested in frequenting known establishments where they can be arrested at any time. Therefore, they will not allow the prostitutes to avail themselves of these new found protections, and prostitutes will be worse off.

 

Why it Might Be Constitutional

 

Can the government do that? Essentially turn around and make things worse for prostitutes? Maybe. You see, by criminalizing the purchase of sex, the government has changed the purpose of the laws. They are no longer merely to get rid of a public nuisance in the form of prostitution in public. They are now laws directed at ending the exploitation of prostitutes. That objective is much more serious, and can justify a great deal more infringements on the prostitutes' security of the person.

 

Consider the analogy to drugs. Imagine that a drug user complained that making possessing and purchasing drugs illegal forced them into unsafe environments in order to purchase and use drugs. That person would be correct. But it is the very act of purchasing and consuming the drugs that the government has deemed morally repugnant. It is the drug use itself that is criminal. It is supposed to be dangerous to commit crime.

 

Previously, the government had not said, through the criminal law, that there was anything wrong with prostitution itself. Now, prostitution is a crime, at least for the purchaser. The fact that it is not criminal for the prostitute is not a reflection of approval by the government of the prostitutes' actions, but comes from the belief that in the case of most prostitutes, they do not truly exercise free will in deciding whether to provide sexual services. I don't know if that belief is accurate, but it was reflected in the decision of the Supreme Court of Canada.

 

So the fact is that prostitutes are doing something that has been deemed sufficiently morally repugnant to be criminalized, but have been exempted from prosecution out of concern for the exploitative nature of the relationship. The government will also undoubtedly argue that it is not possible to criminalize the acts of the purchasers without resulting in dangers for the prostitutes, and that the dangers arising from the criminalization of the act are justified in light of the dangers associated with the act itself.

 

Will they win that argument? I don't know. But it is not the same argument that was made in Bedford, and so we can expect that there might be a different result.

Posted by Jason Morris at 10:17 AM

[Ann Gallerie 7910]

One of the issues with this business is that it is, by it's very nature, easy to dismiss.

 

Not in Canada, you say!

 

I ljust picked this up off of Terri Jean's bog. It is a letter to the powers that be, signed by hundreds of PhD's, doctors, and advocates.

 

 

Enjoy,

 

Ann

 

 

http://blog.terrijeanbedford.com/2014/06/03/government-prostitution-survey-results-a-message-from-terri-jean-bedford/

[drlove 37202]

First off, whether an act is "morally repugnant" is subjective. One may ask the question, by who's standards? Yours? Mine? Morality is not something that can, or for that matter should be legislated. It just opens up too many avenues for interpretation and thus too many variables. Thus, law should be based on empirical evidence. Furthermore, if it is not possible to criminalize the acts of the purchasers without resulting in dangers for the prostitute, then the act should not be criminalized in the first place. Let's not forget that the spirit of the SCC's decision was ostensibly to reduce harm to sex workers, and protect their liberties and security of the person. Lastly, if the government states that there are already inherent dangers associated with the act itself, would it not be the onus of the government in the interest of "protecting the vulnerable" as they've said, to reduce dangers that sex workers face? If so, the government's logic is flawed, and any additional harms pursuant to criminalization are not justified.