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New sex-work bill considerably stricter than Nordic model

C-36 keeps ‘public’ communication illegal if minor might be present

Conservative Justice Minister Peter MacKay dismisses concerns that the new prostitution bill jeopardizes sex workers’ safety. “Not at all,” he says. “We’re not making them do anything. We’re not forcing them to sell sex.” Credit: Wikimedia commons

Vice squads, ready your batons. The Canadian government has introduced new sex-work legislation, and  newspapers, johns, pimps and massage parlours are all in the crosshairs. Sex workers and their advocates are furious.

Justice Minister Peter MacKay introduced Bill C-36, the Protection of Communities and Exploited Persons Act, on June 4. It was expected that the Conservatives would adopt some version of the Nordic model, which criminalizes buyers rather than sellers of sex. What was introduced, however, is substantially stricter.

The bill criminalizes purchasing sex. But it also slaps charges on a wide array of other activities that activists say are central to the profession — the “so-called profession,” as MacKay called it.

Purchasing sex comes with a maximum sentence of five years. Fines can range from $1,000 to $4,000, depending on past convictions or whether the crime took place where “persons under the age of 18 can reasonably be expected to be present.”

But the bill does not leave the selling of sex entirely decriminalized. C-36 makes illegal any sex worker who communicates with a client in a public place where anyone under 18 might be present. A “public place” can include the inside of a car. That means two 17-year-old sex workers working a corner could both be committing a crime simply by being near each other. In that scenario, MacKay agreed, they could be arrested and fined.

MacKay was asked if that compromised the sex workers’ security. “Not at all. We’re not making them do anything. We’re not forcing them to sell sex,” he said.

The one component of the bill that sex workers might appreciate is its explicit permission to hire a bodyguard or driver. However, the parameters around hiring staff are very narrow. The bill makes it illegal for someone to make a living off the income of a sex worker — unless they are a family member or they are providing a legitimate service.

The bill explicitly criminalizes pimps — under a section banning “procurement,” punishable by up to 14 years in jail — as well as anyone who provides drugs or alcohol to the sex worker.

“If they’re not exploiting the individual, then it would not be considered a criminal offence,” MacKay said.

The bill also makes illegal any business where sex is purchased. That could mean that the vice squads will be kicking down a lot of doors to massage parlours across Canada. Xtra asked the minister what that would mean.

“As for the places where we know very often prostitution does take place, including strip clubs and massage parlours, the police will have the same powers they do now to carry out investigations, surveillance operations that are aimed at, again, going after those who are perpetrating the offences around the selling of sexual services,” MacKay said.

While law enforcement agencies have sporadically enforced common bawdyhouse provisions, mostly targeting low-key brothels and massage parlours, this bill sets out a clear mandate for police services across Canada.

The section of Bill C-36 that caught everybody by surprise is at the very front of the bill — it makes illegal any advertisement of sexual services. While it’s unclear just how that section might be applied, MacKay did vow to go after publications and websites that carry these advertisements. MacKay acknowledged this, saying the bill “prohibits advertising the sale of sexual material in print or online.”

The bill empowers police to order such advertisements be taken down and carries jail time of up to five years for anyone who places or publishes the advertisement.

While the bill technically states that advertising one’s own sexual services is not a crime, MacKay said the opposite. Asked whether a sex worker could be prosecuted for listing an ad for their services in a newspaper, MacKay replied, “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.”

NDP justice critic Françoise Boivin finds this new provision alarming. “They may have opened up other problems in view of the Charter.”

The NDP is holding off on taking a formal position on the bill until members have more time to read the legislation, but they have not closed the door on supporting the Nordic model.

Activists are outraged by the legislation.

“I am horrified. I am terribly upset,” says Jean McDonald, executive director of Maggie’s Toronto Sex Workers’ Action Project. “I am very worried about how this is going to impact the people I work with.”

McDonald says the bill will be fought and eventually struck down as unconstitutional. In the interim, she says, sex workers will not be safe. “With this new legislation, we’re going to see more murdered and missing women,” she tells Xtra.

A recent RCMP report on murdered and missing aboriginal women identified a lack of security around sex work as a primary contribution to many of the women’s deaths. The Supreme Court of Canada, in striking down the previous prostitution laws in 2013, highlighted their detrimental impact on sex workers’ ability to protect themselves. The court ruled that the laws criminalizing street soliciting, living off the profits of prostitution, owning a brothel and pimping were overly broad and disproportionate to the purpose they were intended to serve.

“They’re repeating the same mistakes of the past, but in a different version,” says Sarah Leamon of PACE, a group that works with street-level sex workers in Vancouver’s Downtown Eastside.

Leamon is particularly concerned about the continued criminalization of communicating in “public” with potential clients, which will undermine their ability to screen johns before leaving with them. “What we hear from members of the sex worker community, especially survivor and outdoor sex workers, time and time again — that period that they require in order to screen clients is critical to their safety,” she says.

“This is exactly the kind of situation that allowed Robert Pickton to kidnap and murder women for decades,” McDonald says.

Leamon, who also practises criminal law, says the changes will have a huge impact. “Certainly. Definitely. They’re a major, major problem.”

MacKay dismissed their criticisms. “What I say to that is what I’ve already indicated, and that is we are going after the individuals who are exploiting them, who are putting them in dark places, who are forcing them to be reliant on this trade,” he said.