Not quite the Nordic model

Ottawa has unveiled its new prostitution legislation, and lawyers are already lining up to say that it flies in the face of what the Supreme Court decided in Canada (Attorney General) v. Bedford.

Bill C-36, dubbed the Protection of Communities and Exploited Persons Act, brings the so-called Nordic model to Canada. It introduces a new prohibition — the purchase of sexual services, and communication that surrounds it.

That much was expected. It’s the other parts in the bill that have sent a shock through the legal community.

While the idea underlying the Nordic model is not to criminalize the sex workers themselves, Bill C-36 introduces two criminal offences that target sex workers. It brings back the offence of communicating for the purposes of prostitution – which carries a maximum prison term of six months – but caveats that it’s only illegal if it’s in a public area where “persons under the age of 18 can reasonable by expected to be present.” A new prohibition against advertising sexual services carries a maximum prison term of five years.

As Leo Russomanno, lawyer at Webber Schroeder Goldstein Abergel, points out — there are very few places where someone under 18 can be reasonably expected not to be. “That’s anywhere but an R-rated movie,” he says, “Or a bar. Or the liquor store.”

Brenda Cossman, Professor of Law at the University of Toronto, is alarmed by the new charge for advertising sexual services. “That’s criminalizing the sex workers themselves,” she says.

The bill appears to head off that concern. C-36 makes illegal “everyone who knowingly advertises an offer to provide sexual services,” but provides an exemption if the advertisement is for “their own sexual services.”  However, the offence runs contrary to the expressed criminalization of communicating for the purposes of prostitution in a public space.

Justice Minister Peter MacKay was asked to clarify, and he did: advertising sexual services publicly will be illegal. For everyone. “If there is a direct connection to the selling of sex that does not present itself in a public way, then it would be legal but if it is done so in a way that is perceived as public or as being available to those under the age of 18, it would be illegal,” he said in a press conference after tabling the bill.

“Any kind of advertising, which is by definition public, is going to get captured in this,” Cossman says.

That opens the door for police to go after magazines and websites that publish escort ads, according to several lawyers who spoke with National.

One of the core tenets of the Bedford decisions was that legislation can’t impede a sex worker’s ability to screen their clients. They found that, if the Criminal Code does so, it almost certainly infringes a sex workers’ right to the right to security of the person laid out under Section 7 of the Charter.

Sarah Leamon, a criminal lawyer at Acumen Law Corp and chair of the board at Vancouver-based sex work group PACE, says Bill C-36 will utterly fail the test set out in Bedford.

“If you’re able to screen clients at arms length, or online, or over the phone— it definitely makes a difference for the safety of these men and women,” she says, adding that banning advertising, and thus taking away sex worker’s ability to field clients over email or phone, is dangerous.

“What jumps out to me is that, basically, they’re repeating the same mistakes of the past.”

Sex work groups echoed Leamon’s opinion. “The Canadian government’s proposal of Bill C36 is shocking. We are stunned and horrified at the lack of insight, the total disregard of evidence based research and their blatant attempt to abolish prostitution in this country,” reads a statement from PACE.

Pivot Legal Society, a legal advocacy group that represents sex workers, produced a legal opinion on Wednesday evening, slamming the bill.

“By restricting the ability of sex workers to effectively work indoors, this provision engages sex workers Section 7 rights in that increases the risks faced by sex workers. It also violates sex worker’s Section 2(b) rights by restricting their freedom of expression. This is a very misguided law, which is contrary to both the letter and spirit of the Supreme Court’s decision in Bedford. There is little question that Canadian courts would declare this new prohibition on advertising to be unconstitutional,” the opinion says.

In a paper published in Osgoode Law School's Institute for Feminist Legal Studies, three lawyers — Jula Hughes, Vanessa MacDonnell, Karen Pearlston — considered how the court would look on the Nordic model.

They posited that, following the Supreme Court’s logic in the Insite decision — where “the illegality of the underlying act need not foreclose a successful constitutional challenge” — whether introducing the Nordic model would be unconstitutional, because it, as the Court phrased it in the Insite case, “undermin[es] the very purposes of the [statute].”

“It is an interesting question whether a regime that criminalizes the purchase of sexual services and in doing so causes harm to the very population it seeks to protect would survive an arbitrariness assessment,” the three authors wrote.

It’s a very different problem than they had with the previous laws.

The Supreme Court, in Bedford, found the laws to be grossly disproportionate to their intent — reducing public nuisance — and found it unconstitutional for applying a disproportionately harsh law on a relatively minor crime. Ottawa appears to have re-tooled the legislation with a new purpose altogether: protecting exploited sex workers.

Whereas Ottawa previously tried to contend that they were only criminalizing the annoyances associated with sex work — like cars stopping frequently in red light districts — their goal is now explicit.

“When you look at it in the grand scheme of the legislation, it’s obviously trying to outlaw sex work and drive it underground,” says Russomanno. But, he says, if they think clarifying the intent will satisfy the top court, it won’t work. The Insite decision is evidence of that. “I think the Conservatives completely missed the plot here, in terms of what the court was saying,” he says. “They appear to have acted quite specifically on this idea of legislative intent.”

He says the top court may well decide that if the bill designed to protect sex workers actually puts them in danger, it won’t stand up to scrutiny.

National asked Cossman, who has followed the legal debate for years, what parts of C-36 are unconstitutional. “All of it,” she says. “All of it.”