This week, Bill C36, the amendment to the Canadian Criminal Code on prostitution-related offenses, passed third reading in the Senate and requires royal assent to become law. It is likely that Bill C36 will become law by December, given the one-year deadline that was imposed by the Supreme Court of Canada when it struck down the three prostitution-related provisions of: a) Keeping a common bawdy-house; b) Living wholly or in part on the avails of prostitution of another person; c) Communicating in a public place for the purpose of engaging in prostitution.
There is some controversy as to whether the revised prostitution-related law will be subject to another constitutional challenge. Recently Benjamin Perrin made a contribution in the Globe and Mail stating that whether Bill C36 is constitutional depends on “how effectively it is implemented and when a case is brought forward.” (Click here for article) Although Perrin brings up a few valid points in his contribution to the Globe and Mail, whether a law is constitutional depends not on how well it is implemented and the cases brought forward using the law in question, but on whether the law violates specific rights and freedoms that are outlined in the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada struck down the three aforementioned prostitution-related provisions because they viewed them to have arbitrary, overbroad and/or grossly disproportionate deprivations to the specific right to security. The implementation of the new law and further research on how it impacts the multifaceted nature of prostitution will provide good information to law enforcement, government, academia and the general public interested in the issue. Moreover, the data gathered from monitoring the implementation of the new law and cases brought forward could potentially serve as evidence to either side of a future constitutional challenge. But whether the new law is constitutional hinges on whether sex worker advocates (or others) are able to make a case that the new law (or components of the new law) violates specific rights and freedoms outlined in the Charter of Rights and Freedom. If a convincing case can be made for a constitutional challenge, then the courts could very well hear a challenge of the revised prostitution-related law, regardless of how well the law is being implemented and what cases involving the law in question are brought forward.
But at the end of the day, it is safe to say that both sides agree that prostitutes should not be criminalized for selling sex, regardless of the reasons why they do so. Moreover, it may also be safe to say that violence and exploitative circumstances prostitutes face mostly stem from the demand side of the sex trade. As such, Bill C36 is a step in the right direction as it decriminalizes those who prostitute and criminalizes the purchasers of sex. The Government of Canada has also committed $20 Million to be put towards initiatives and programs that facilitate those who desire to exit sex trade, thereby allowing vulnerable individuals a viable alternative to the violence and exploitation they may face in the sex trade.