Prostitution has never been a crime in Canada, though successive governments have regulated related activities in an attempt to exert some measure of control over the industry. But the effectiveness and safety of those regulations -- many of which went unenforced -- have long been a source of debate and, more recently, court battles.
In December 2013, the Supreme Court of Canada struck down three key regulations that prohibited the keeping of brothels, living on the avails of prostitution and communicating in public for the purposes of prostitution. The court's 9-0 unanimous decision, written by Chief Justice Beverley McLachlin, should serve as a model for quality reasoned public policy.
The purpose of the law was, "to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguard," wrote McLachlin.
Judging a law by its effects and outcomes, rather than looking only at intentions, is an important part of the law-making process that politicians should pay heed to, but is all too often ignored.
Earlier this month, Justice Minister Peter MacKay introduced the Protection of Communities and Exploited Persons Act. MacKay explained that the bill will "protect those who are most vulnerable by going after the perpetrators, the perverts, those who are consumers of this degrading practice." Or, at least, that's the intent of the bill, but upon further investigation it seems to be just another feel-good policy that sounds great in theory, but is likely to fail in practice.
The government proposes to outlaw the purchasing of sexual services and, while sex workers would still be permitted to advertise their own sexual services, the act of advertising the sexual services offered by others, whether in print or online, would also be illegal. The bill also prohibits any communication for the purpose of selling sexual services in public spaces where minors are reasonably expected to be present.
MacKay dubbed the new legislation, the 'Canadian model,' a reference to the 'Nordic model' that makes selling sex legal, but buying sex illegal, and outlaws brothels and pimping. The intent of the Nordic model was to reduce the demand for prostitution and promote safety, but a 2004 report conducted by the Swedish police on the state of prostitution since the reform showed the actual impact of the law was much less progressive.
The report showed the law change had actually increased the danger faced by sex workers. Making the purchasing of sex illegal increased the risks that clients faced and created time pressures that made it more difficult for sex workers to assess a potential client's trustworthiness prior to entering their vehicle. In addition, because the new legislation outlaws prostitution in many public places, workers were forced into darker, more isolated corners of cities, instead of staying in well-lit, populated areas that tend to be safer and where help is more readily available if needed.
The report also found more clients were willing to pay for unprotected sex, prices fell after the law change and sex workers felt they were at greater risk of violence. Moreover, a new form of crime emerged -- women posing as prostitutes in order to rob clients, who usually didn't report the crime for fear they themselves would be arrested.
Rather than trying to bring a failed model across the Atlantic, MacKay should instead look across the Pacific to New Zealand, which legalized prostitution by passing the Prostitution Reform Act in 2003. The intent of the New Zealand law was to promote the health, safety, and welfare of sex workers by legalizing the practice and bringing the entire industry under the jurisdiction of the nation's standard employment and public health laws.
New Zealand legalized the ability for clients and sex workers (of legal age) to enter into a (consensual) contract for sexual services and also permitted, regulated brothel ownership and pimping, while mandating the need for safe sex and compliance with all relevant employment laws. Since the law change, New Zealand has seen a decrease in the rate of violence against prostitutes, an increase in police protection and improved employment conditions for workers.
In contrast with the Swedish police report, the reforms have won wide support from New Zealand Police. Assistant Police Commissioner Grant Nicholls summarized their view, saying: "I think any degree of criminalization runs the risk of driving some of this activity underground."
Prostitution occurs in Canada, and outlawing the practice will not change that fact. MacKay should look past the intent of his new law to the likely impacts, as evidenced by overseas experience. Instead of using the law against the industry and forcing it into the dark, the government should bring the practice out in to the open where all involved can be protected by the law.
Peter McCaffrey is a policy analyst, and Raquel Dancho is an intern, at the Frontier Centre for Public Policy (www.fcpp.org).