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John Ivison: Growing number of legal experts encouraging provinces not to enforce new prostitution law


Peter MacKay might as well try to stop time or turn the tide as end the sex trade — the explicit hope of the federal justice minister's new prostitution law.

The International Day to End Violence Against Sex Workers Wednesday highlighted the traction opponents of the bill are starting to achieve.

In one development, academics, lawyers and civil liberties activists petitioned B.C. Premier Christy Clark to reject the federal government's new prostitution laws by refusing to prosecute people who are caught buying sexual services.

In another, 190 legal experts from across the country expressed their concern at the direction Ottawa has taken with its new law, saying it likely violates the Charter of Rights & Freedoms.

Opponents of the legislation appear to have the sympathies of some provincial governments.

Ontario Premier Kathleen Wynne said she had “grave concerns” about the new law and has asked her attorney general to look into its constitutionality.

Sources inside the B.C. government said Ms. Clark is unlikely to pick a fight with Ottawa over the new law.

But police crime charge sheets suggest she does not have to direct Crown counsel not to prosecute sex workers because the Vancouver Police Department (VPD) rarely arrests them in any case.

There are no statistics available yet for prosecution rates under the new law, but police forces in big cities across Canada have shown an increasing reluctance to file prostitution charges.


Vancouver recorded just 20 cases in the year to the end of November, a drop of 45% from the same period in 2013. Calgary recorded a 56% drop in the first quarter of this year, while Montreal saw prostitution crime fall by 29% in 2013, compared to the previous year.

The VPD's sex work enforcement guidelines state sex work involving consenting adults is not an enforcement priority.

The 2013 document says “alternative measures and assistance must be considered with enforcement a last resort.”

The B.C. government source said the Vancouver force has leeway to choose its enforcement priorities and the government expects other major police forces in the province to follow suit.

The letter to Ms. Clark from Pivot Legal Society and 13 other organizations coincided with a letter from 190 legal experts to Ms. Wynne, expressing their concern at the constitutionality of the new law.

ROGERIO BARBOSA/AFP/GettyImages Students march on May 5, 2012 in Victoriaville, Canada, where Quebec's liberal party is holding its annual convention. The government of the French-speaking province of Quebec and student groups clinched a roadmap agreement May 5 to put an end to 12 weeks of often violent protests over tuition hikes, officials said.

“We are concerned that, for the very same reasons that led the court to strike down the earlier prostitution laws, the new criminal regime is likely to violate the charter as well,” the letter said.

Katrina Pacey of Pivot said the new law will recreate or worsen the dangerous conditions that existed under the former prostitution laws that were struck down by the Supreme Court of Canada for infringing sex workers' right to security of person under section seven of the charter.

Ms. Wynne has already expressed her concern the law will not make sex workers safer.

A spokeswoman for the premier said Wednesday the province is bound to enforce the Criminal Code, “but we must also ensure we are upholding the constitution and the Charter. The Attorney General will provide options to our government in the event the legislation's constitutionality is in question.”

The new criminal regime is likely to violate the charter as well

Legal experts have speculated if Ontario decides to challenge the law, it will suspend prosecutions.

The letter to Ms. Wynne, which was signed by “concerned citizens and members of the legal profession,” said the authors welcomed the premier's desire to ensure the new law enhances the safety of vulnerable sex workers.

“In keeping with this commitment, as you analyze the new regime, we urge you to keep in mind the harms that the Supreme Court said were caused by the then existing criminal prohibitions, as well as how similar the new prohibitions are to the former ones and can, therefore, be reasonably be expected to operate in the same way to produce the same harms,” it added.

Whether the unilateral decision by provinces and police forces not to enforce laws passed by Parliament is a positive development depends entirely on the strength of their constitutional case. In this instance, 190 of the country's finest legal minds believe this law will not make the lives of sex workers more safe.

Mr. Mackay argues his legislation will protect exploited sex workers. But, as Charles Dickens' Mr. Bumble had it when told the law held him responsible for his wife's actions, if the law supposes that, the law is an ass.

National Post

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