EDITORIAL Bill C-36: The Moral Debate

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In December 2013, regarding prostitution, the Supreme Court of Canada struck down provisions in the Canadian Criminal Code, specifically: keeping or being in a bawdy house or brothel; living on the avails of prostitution; and communicating in public for the purpose of prostitution. The Court stated that the provisions violated the Canadian Charter of Rights and Freedoms- namely section 7 of the Charter where it states ‘everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justices.’

The ruling takes effect in December 2014.

However, the House of Commons Justice Committee made a counter move against the ruling in the form of Bill C-36which according to critics also violates section 7 of the Charter making it vulnerable to yet another Charter challenge.

In part Bill C-36:

  • Criminalizes the buying of sex. Penalties include cash fines to jail time.
  • Prohibits prostitutes from discussing the sale of sex in certain areas.
  • Makes it illegal for a person to receive material benefit from prostitution by anyone other than themselves i.e.- only the prostitute could benefit. This excludes those who have a legitimate legal living arrangement with the individual.
  • Criminalizes the advertisement of prostitution. Media platforms that ‘knowingly advertise an offer to provide sexual services for consideration or money’ may be persecuted. However, prostitutes themselves may advertise their own services but the media platform could face prosecution should it knowingly advertise that sexual service.

If you are like a majority of Canadians the proposed bill is just as confusing as the Criminal Code provisions struck down last year by the Supreme Court. In each instance an individual maintains the right to do what they please with their body but the provisions of how they communicate and conduct their business is enforced by law.

Also in each instance, opponents argue that these provisions increase the risk to those involved in prostitution. Prohibiting the discussion of the sale of sex can be particularly problematic for street prostitutes who need time to ‘feel out’ their safety before jumping into a car with a buyer. Street prostitutes often develop a reporting system amongst themselves to keep each other safe.

Critics also express that the provision which would make it illegal for a person other than the prostitute to benefit from sex work isolates workers and increases their risk to violence. Escort agencies or bawdy houses can provide security to individuals involved in sex trade. However, it is true that these entities can also harbour violence towards prostitutes.

Proponents of Bill C-36 assert that those involved in prostitution are victims of human trafficking and that the bill is a good step in the right direction. The bill targets the buyers, pimps, escort agencies and any other entity that would benefit from ‘sex for a fee’ with children, women and men. This is true but are human trafficking and prostitution one in the same thing?

As per the United Nations Office on Drugs and Crime found in article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Trafficking in Persons is defined as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Prostitution is widely defined as the practice of exchanging money for sexual services. The distinction between the two is that trafficking is forced prostitution. 

Does trafficking occur in Canada? Yes.  Do we need laws that protect victims of trafficking? Yes. Are all prostitutes trafficked? No. However, many prostitutes are obligated into the sex trade due to lack of choice with poverty being the single greatest catalyst.

Should Bill C-36 pass, the government has pledged $20 million over five years to help sex workers exit the sex trade. Supporters of the bill and opponents alike agree that this amount is a joke and some wonder where is the promise of support and protection for women who are trafficked by the biggest pimp of all of them- Poverty.

In Canada 9% of people are living in poverty. However some groups are much more likely to be poor than others:

    • Single parent mothers—21%  (7% of single parent fathers are poor)
    • Aboriginal women (First Nations, Métis, Inuit)—36%
    • Visible minority women—35%
    • Women with disabilities—26%
    • Single senior women—14%

While Canada is distracted with the eternal moral debate about the rightness or wrongness of selling sex for money and whether or not the government can pass legislation on moral issues, nothing is mentioned of how the root causes of prostitution will be tackled. Of even the majority of women, who work in the sex trade and advocate for the legalization or decriminalization of prostitution, most admit that their entry was motivated by economic hardship.

Criminalizing activities around prostitution is neither a solution nor an effective prevention strategy.

The government has not mentioned how much money and manpower will be committed to enforcing the new laws should Bill C-36 find its way through Senate.  Aside from a mere$4 million dollars per year over the next five years, the government hasn’t explained how they propose to cut off the root causes of prostitution. Women comprise the most impoverished group in Canada and indeed around the world. Government policies that increase the economic security of women are a far more effective approach in keeping women out of the sex trade and in decreasing their exposure to violence within the sex trade.

Just as important are programs designed to strengthen community support networks for people involved in the sex trade. Safe places where women (or men) can go to receive harm reduction support, health care or to report a violent experience can be places of contact that eventually lead to an exit from the sex trade- should an individual want out.

Over the past fifteen months Sault Ste. Marie Police radically changed the way in which they respond to prostitution in the community. On May 16th, 2013, then Chief of Police, Bob Davies, announced that new police policy would protect the names and addresses of individuals involved in prostitution type charges i.e. no more media releases.  Davies also said that the police department would make a major shift away from enforcement against prostitutes. Instead officers would be trained to engage and identify the underlying factors that drive women into a lifestyle of selling sex and then connect them to agencies- eventually a community plan, which could assist individuals out of the sex industry.

And the police department has made good on this public statement. Officers from the newly established Neighbourhood Resource Centre have been working with various community organizations towards developing proactive and supportive strategies when engaging with sex trade workers. Just this past week officers brought out a volunteer from the Coalition of Women in Numbers to stroll the city’s ‘red light district’ for the purpose of distributing harm reduction and hygiene kits. More importantly the activity facilitated respectful human contact and created an opportunity to slowly begin building trusting relationships between prostitutes and community supports that include local officers.

The House of Commons Justice Committee resumes after summer break on September 15th, 2014 when the fate of Bill C- 36 will be decided. The current government has promised to pass Bill C-36.  However, those who originally challenged the Charter have also made a promise to launch another legal fight should the bill pass.

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