When the Supreme Court of Canada struck down the country’s prostitution laws late last year, the move was celebrated by advocates for the women and men who often prefer to be called sex trade workers. Prostitution itself had never been illegal in Canada. The court now found that the old prohibitions surrounding it—particularly laws that banned brothels and bargaining in public over the sale of sex—forced prostitutes into more dangerous ways of doing business. The judges ruled that preventing them from working inside or from trying to screen out potentially dangerous customers violated their right to “security of the person” under the Charter of Rights and Freedoms. But Chief Justice Beverley McLachlin also wrote, in the final paragraphs of the unanimous decision, “That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.”
Justice Minister Peter MacKay tabled a new anti-prostitution act, Bill C-36, early this month that ended speculation on what those new limits would be. Where and how? MacKay’s answer: no place and under no circumstances. His law’s main innovation is to make it illegal to buy sex anywhere, anytime. Selling sex, oddly enough, remains legal, except in any location where children might reasonably be expected to be found. Nothing in MacKay’s approach seems likely to make it easier for prostitutes to try to work more safely, along the lines the court discussed, raising immediate questions about how his legislation can avoid being ruled unconstitutional, just like the laws it replaces. According to several legal experts, though, MacKay’s act stands a reasonable chance of surviving the inevitable court challenge, thanks to the way it frames sweeping new objectives.
