Canada’s New Prostitution Bill: Don’t Assume it’s Unconstitutional

—Michael Plaxton, University of Saskatchewan [Twitter: @MichaelPlaxton]

Last week, Justice Minister Peter MacKay tabled the much-anticipated Bill C-36, The Protection of Communities and Exploited Persons Act. The bill, which is a response to the Supreme Court of Canada’s landmark ruling in Bedford, has already been the subject of considerable criticism. In particular, critics contend that the proposed legislation will leave sex workers just as vulnerable as they were before Bedford. This has led some media commentators to suppose that the new offences are as constitutionally infirm as the provisions struck down in December. (See here and here.)

There is nothing unreasonable in that view, but we should not rush to judgment. There are two reasons for this. First, the decision in Bedford was not, contrary to the thinking of many, based solely on the fact that the old legislation subjected sex workers to harm. It was also based on the kind of objectives that the offences set out to achieve. Those objectives have changed, and will be accorded far greater weight than those relied upon by the Crown in Bedford. Second, and related to the first point, the fact that the legislation explicitly sets out to discourage sex work arguably makes the burdens imposed on sex workers more constitutionally permissible. Indeed, there is a (slender) argument that the legislation no longer treats sex work as a lawful activity at all. This may not guarantee Bill C-36’s constitutionality, but it does throw up some significant barriers to those who would challenge it.

(FYI, this is a shortened version of a longer work-in-progress. That paper briefly discusses some of the more controversial offences in the bill.)

Bedford v Canada (Attorney General)

We should be clear about one thing: the Supreme Court did not tell Parliament that people have a constitutional right to engage in sex work. Nothing in the Bedford ruling prevents the legislature from making prostitution a criminal offence. The offences struck down by the Supreme Court were constitutionally problematic because they put sex workers at additional risk of injury or death. The offence of operating a common bawdy-house, for example, prevented prostitutes from inviting prospective clients into their own homes. As a result, they were forced either onto the streets or into the homes of potential predators. In their own homes, sex workers might devise escape routes or defensive strategies. On the street, they were at the mercy of johns. Likewise, the offence of living off the avails of prostitution made it impossible for sex workers to hire bodyguards or other staff that might reduce the risks attached to the practice.

What so concerned the Court was that the offences prevented prostitutes from taking steps to protect themselves in the course of engaging in a lawful activity. Suppose the criminal law suddenly ceased to recognize a defense of self-defense. A person who was attacked would have to choose between breaking the law and permitting her assailant to injure or kill her. Such a dilemma would be intolerable.  The law would, in effect, make people more vulnerable than they would be if there was no legal order at all. To use a frequently cited (and occasionally criticized) passage from Bedford, it would be unacceptable if Parliament permitted people to ride bicycles, but outlawed helmets. In the same way, it cannot permit the sale of sexual services, while preventing them from taking steps to protect themselves.

In Bedford, the federal and provincial governments argued that there were good reasons for creating the offences. But the Court concluded that the impact on sex workers’ security was “grossly disproportionate” to the objectives that the legislature was trying to achieve. The bawdy-house and solicitation provisions were aimed at preventing what amounts to public nuisance – the disruption caused to neighbourhoods and communities when sex workers ply their trade. That can be a perfectly valid reason for enacting some criminal offences, but not these ones. Quite simply, the value of a peaceful neighbourhood cannot justify the sort of violence that sex workers are regularly forced to endure.

The Preamble

Arguably, the most important difference between the new legislation and the old is not to be found in the offences themselves, but in the preamble. This is because the preamble suggests that the legislation has an altogether different purpose. Now, the mere fact that the preamble articulates a given purpose does not settle anything about legislative intention – there are other factors to be considered when determining the ‘mischief’ that Parliament aimed to address. But the SCC has relied on preambles in other cases, and at this stage it is useful to take that as our springboard.

What jumps out from an initial inspection of the preamble, as well as other aspects of the bill, is that there is no mention of nuisance. Instead, it emphasizes Parliament’s “grave concerns about the exploitation that is inherent in prostitution”; “the social harm caused by the objectification of the human body and the commodification of sex”; the need to “protect human dignity and the equality of all Canadians by discouraging prostitution”. These are far more powerful rationales. The Supreme Court has, on a number of occasions, accepted that the state has a compelling interest in undermining stereotypes about women as passive objects that exist principally for the sexual gratification of men. In Butler, for example, the Court upheld the criminalization of certain obscene publications on the basis that they dehumanize and degrade women. In a passage endorsed by the Court, the social harm of these materials was described in these terms:

The effect of this type of material is to reinforce male‑female stereotypes to the detriment of both sexes.  It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable.  A society which holds that egalitarianism, non‑violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles. [Report on Pornography by the Standing Committee on Justice and Legal Affairs (MacGuigan Report) (1978), at p. 18:4]

The need to overcome objectifying gender norms has also been used to justify limits on the admissibility of sexual history evidence in sexual assault trials.

Now, it is fair to wonder if consensual sexual transactions are really degrading or dehumanizing – if they treat sex workers, and women generally, as mere instruments of male gratification. In an intriguing passage in Butler, Sopinka J. remarked:

Among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation.  They run against the principles of equality and dignity of all human beings.  In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative. Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing.

Later, in Little Sisters, Binnie J. made a similar remark with respect to gay and lesbian pornography:

The potential of harm and same-sex depiction are not necessarily mutually exclusive. Portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable.

In Labaye, a majority of the Supreme Court back-pedaled somewhat, holding that sexual acts between adults in a ‘swingers club’ did not constitute criminal indecency. The fact that they were consensual certainly made an important to the analysis. But this should not be taken as a signal that any anonymous sexual transactions between consenting adults in a public setting are fine. First, the club was not open to the public at large, but rather restricted access to members who were already “disposed to this sort of sexual activity.” There was, then, only a limited risk that the activities taking place in the club could send any sort of message to the society as a whole. Perhaps more importantly, though, the majority made a specific point of saying: “No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others.” The majority thus hinted that prostitution is the sort of consensual sexual activity that can perpetuate pernicious gender and sexual norms in our culture.

The government would argue that the surrounding circumstances of the sexual act – the very fact that money has been exchanged for sexual services in an anonymous commercial transaction – makes it degrading and reinforces the very kind of gender norms that hold women back. There are good reasons for doubting this claim, but it is hard to imagine the Supreme Court saying that Parliament cannot proceed on the basis of this line of thinking.

The mere fact that the government has a more compelling objective does not mean that the harms imposed on sex workers instantly become constitutionally palatable. It does, however, make it somewhat more difficult to argue that those harms are “grossly disproportionate” to the legislative objective. Whether a harm is disproportionate, after all, depends on how important the objective is. The Crown’s argument will be that, to permit sex work while stemming the spread of objectifying sexual norms and values, it has little choice but to impose strict limits on public solicitation and advertising, and regard those who would provide assistance to sex workers with a large degree of suspicion. The harms endured by sex workers as a result of being isolated in this way are, on this view, closely connected to the compelling objectives of the legislature, and reasonably proportionate.

It is also more difficult to suggest that legislative initiatives that make it more difficult for women to engage in sex work are unconstitutionally arbitrary or overbroad when the stated purpose of those initiatives is precisely to discourage people from pursuing that sort of work.

“Discouraging” Lawful Activity

The Supreme Court in Bedford rested its reasoning on the premise that prostitution is a lawful activity. Has that changed? The better view is probably ‘no’ – though I have a small proviso which I will get to in a moment. Nothing in this legislation states that it is a crime for a person to sell sexual services for consideration. If we learned anything from Bedford, it is this: the mere fact that Parliament criminalizes a variety of activities surrounding sex work – to cast a “shadow” of criminalization upon it –  is insufficient basis for concluding that sex work itself is criminal.

But does that mean that Parliament cannot set out to “discourage” prostitution – one of its stated objectives in the preamble? Surely it can. Smoking is a lawful activity (for adults), but it remains open to Parliament to impose additional taxes on cigarettes, and to restrict advertising. The City of London, in England, imposes congestion charges on motorists who drive during peak hours – simply by way of discouraging them from doing so. As Thaler and Sunstein have argued at length, it is open to the government to ‘nudge’ us in all sorts of directions. Now, the point of using nudges rather than criminal prohibitions to guide our actions is that the former still leaves citizens free to exercise their autonomy when deciding how to live and behave. With that in mind, we may wonder if the new bill represents a ‘nudge’ rather than a ‘shove’. Suggestions from Kyle Kirkup and others, that it amounts to a Nordic model on steroids, emphasize that the bill leaves sex workers with so little realistic freedom of choice that the government had might as well simply criminalize prostitution outright.

This raises the question: does the bill treat sex work as a lawful activity at all? As I said a moment ago, the better view is yes.

And yet. One aspect of this bill gives me pause. Section 286.5(2) states: “No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.” The language is peculiar. It does not say that sex workers do not commit the criminal offence of aiding and abetting johns. It says they cannot be prosecuted for it. The provision addresses prosecutors, not sex workers. If anything, the provision presupposes that sex workers are engaging in criminal activity – it refers to the conduct of the ‘immunized’ sex worker as “the offence”. The language of ‘immunity’, which appears in the bill, is itself suggestive: we do not tend to speak of a person who has committed no criminal offence as ‘immune’ to prosecution – there is simply nothing to prosecute.

It might seem strange to suppose that one could commit an offence for which one cannot be prosecuted, but there is nothing incoherent in the idea. The primary role of the criminal law is expressive, not punitive. It would, in principle, be open to Parliament to say that a course of action is criminal, but that the maximum penalty is an absolute discharge. It hasn’t done that here, and that leads me to think that we are still only talking about the casting of shadows upon sex work. That said, the language used in s. 286.5(2) certainly is meant to send a discouraging message to those who engage in sex work – that they associate with criminals, and that it is only by the good graces of Parliament that they are allowed to continue in their “lawful activity”.

What If Sex Work Is Unlawful?

Suppose the new legislation does make sex work unlawful. That wouldn’t quite end the discussion. There would be at least two fall-back positions for those wanting to challenge the law. First, one could argue that Parliament lacks the constitutional authority to criminalize sex work. That sort of attack would be highly unlikely to succeed. Quite simply, the SCC has never held that Parliament lacks the authority to declare a course of action “criminal” where doing so does not run afoul of a discrete Charter protection (like freedom of expression under s. 2(b)) or division of powers. In Malmo-Levine, a majority of the SCC held that John Stuart Mill’s ‘harm principle’ is not a principle of fundamental justice – meaning that it is open to Parliament to paternalistically criminalize conduct on the basis that it causes harm to oneself. Here, the alleged harm is not just to those who engage in the conduct (the sex workers themselves), but to others – i.e., to Canadian women generally.

A second possibility would rely on the SCC ruling in PHS (the Insite case). Insite was a safe injection facility designed to protect users from some of the health risks associated with their addiction. To function, the facility needed an exemption from the criminal prohibitions on the possession and trafficking of controlled substances. The legislation made it possible to apply for such an exemption. The Minister of Health, however, declined to extend the temporary exemption he had granted on previous occasions. In doing so, the SCC ruled, the Minister violated s. 7 of the Charter.

The importance of PHS, to some, lies in the fact that those using drugs were engaged in an unlawful activity – conduct explicitly criminalized by Parliament. By suggesting that the Minister acted arbitrarily in denying users the option of injecting drugs under safe(r) conditions, the argument goes, the SCC effectively declared that the government cannot capriciously make it more dangerous to engage in even unlawful activities.

Never say never.  This argument, though, has some significant challenges to overcome. First, the SCC did not say that Parliament had an obligation to enact the exemption clause – though it did express some enthusiasm for this sort of provision. The applicants’ claim succeeded on the basis that the Minister, not Parliament, had acted arbitrarily. There is no exemption clause in Bill C-36.

Second, the Minister’s exercise of discretion was treated as arbitrary because his reasons for refusing the exemption bore no relation to the legislative purpose underpinning the CDSA. The SCC had found, in Malmo-Levine, that the purpose of the Act was to prevent the harms associated with drug use. The Minister’s decision to deny the exemption, however, could not have been animated by health and safety concerns given Insite’s track record for reducing those harms “without increasing the incidence of drug use and crime in the surrounding area.” There was, then, a disconnection between legislative purpose and administrative action.

Could one say that there is a comparable disconnection between legislative goals and effects? Some have hinted as much. The purpose of the proposed legislation is to prevent harm to sex workers. But this legislation will isolate them and make them more vulnerable. Since the goals and effects are at loggerheads, some critics seem to say, the legislation is arbitrary.

The trouble is that this argument treats all harms as interchangeable. Yes, the goal of the legislation is partly to help sex workers – in part by discouraging them from engaging in conduct that the government regards as “inherently dangerous”. But the wording of the preamble suggests that the harm targeted by the Act is not just physical harm to sex workers; that it also targets the social harm caused to sex workers and women generally by the proliferation of sexually objectifying gender norms. On this view, harm results whenever people engage in sex work, whether physical injury is caused or not, simply because it reinforces pernicious values. This would be especially true when others can see sex work practiced and treated as legitimate. Given that sort of objective, it is more difficult to say that it is arbitrary to isolate sex workers with communication and advertising restrictions.

This still leaves the question of whether the legislation is grossly disproportionate. The courts may conclude that the need to stem the proliferation of objectifying gender norms is simply not sufficiently compelling to justify the risk to sex workers’ health and safety.  That is possible. But as we have seen, the Supreme Court has shown great support for legislative efforts to combat objectifying gender norms, as well as some sympathy for the view that sex work is inherently objectifying and degrading. This may be a close call.

Conclusion

My point has not been to make the case for or against constitutionality – for all we know, this bill could be altered in any number of ways before it is (inevitably) signed into law. My point is only that we should not get ahead of ourselves on the question of constitutionality. This bill, as it stands right now, presents a brand-new set of legal questions. Make no mistake, though: the next round of Charter challenges will not simply be Bedford Redux.

 

Suggested Citation: Michael Plaxton, Canada’s New Prostitution Bill: Don’t Assume it’s Unconstitutional, Int’l J. Const. L. Blog, June 13, 2014, available at: http://www.iconnectblog.com/2014/06canadas-new-prostitution-bill-dont-assume-its-unconstitutional