New prostitution laws aren’t just a federal concern

Alexia Bystrzycki, Brianna Heinrichs, Canada, Commentary, Regulation, Uncategorized

Reactions to the federal government’s introduction of new prostitution laws are mixed, with some praising the Nordic-style ban on buying sex and others saying this approach entails the same risk of harm to sex workers that caused the Supreme Court to strike down the old laws in the Bedford decision. While the fate of Canada’s new prostitution laws is presently unknown, Canadians can at least expect to see greater involvement of the provinces and municipalities in the sex industry.

In one scenario, the federal laws will be struck down again by the courts because they force sex workers into more vulnerable situations. When the buyers of sex are criminalized, sex workers might not be able to take a reasonable amount of time to screen their clients, given the rush to avoid any police intervention. Moreover, as their client base decreases due to people not wanting to risk being charged with a crime, sex workers are more likely to accept dangerous clients or perform riskier acts.

If the laws are struck down again as unconstitutional, then under the rules of federalism, there might be little else the federal government can do to address prostitution. The Margarine Reference in 1949 made it clear that the federal government cannot legislate under its criminal law power unless the law involves a prohibition, an associated penalty, and is related to public peace, order, security, health, and morality. If the federal government does not consider sex workers criminals and is unable to issue prohibitions on aspects of the sex trade without harming their safety, there is not much it can do to regulate the industry. Regulation would be up to the provinces, which have jurisdiction over property and civil rights and health, and municipalities, which derive authority from the provinces.

While many Canadians seem to champion the idea of local regulation of prostitution, municipalities would struggle to strike an appropriate balance between repressing the nuisances of sex work and keeping sex workers safe. City residents would demand that their children be protected from exposure to prostitution, but confining sex workers to potentially unsafe areas risks once again violating the principle of harm reduction that animated the Bedford judgment. Provinces and municipalities will have their work cut out for them if the federal government ceases to concern itself with prostitution.

In a second scenario, the new federal legislation withstands constitutional scrutiny. But provinces and municipalities are still likely to be more involved. While Minister Peter MacKay has said that prostitution is too complex of an issue to be left to municipalities, the federal government at least needs to acknowledge that it needs the cooperation of the provinces and municipalities if its new laws are to succeed.

The federal legislation is modeled on the premise that sex workers are victims, with the ultimate goal of such a model being the abolition of prostitution. A key component of such a model is providing support to sex workers and assisting them out of the sex trade: a job that can only be effectively carried out by provinces and local communities.

Municipalities in Sweden and Norway, countries that provide the model for Canada’s new criminalization of johns, work to prevent entry into prostitution and help people transition out of sex work. Such programs already exist in Canada, but while prostitution is on Canadians’ minds, these programs are good candidates to receive more funding and attention. The City of Calgary has already formed a task force to determine a municipal strategy on the sex trade, even sending delegates on a trip to Scandinavia to seek inspiration.

The respect with which police officers treat sex workers will play a critical role in improving their situation, and provinces (which control most criminal prosecutions) would need to effectively prosecute johns. Municipalities already play an important role in licencing and monitoring massage parlours and escort services, often fronts for prostitution. It is unclear whether the new federal law will impact municipalities’ adult business bylaws, and perhaps this will be up to the municipalities to decide.

Whether the new federal prostitution laws remain or disappear, provinces and their municipalities should be prepared to involve themselves more deeply in the sex industry. Either they will take over the regulations or they will be relied upon not only to prosecute johns but to assist sex workers out of the industry.