How the Justice department sees the new prostitution bill surviving

A Justice Canada official explains the strengths of the proposed federal prostitution legislation

In this story on the chances of the federal government’s new prostitution legislation surviving a likely Charter of Rights and Freedoms challenge in court, I quote a couple of law professors on why Bill C-36 might well pass constitutional muster.

But I also touch, though only briefly, on comments from a Justice department official. In fact, the official, who spoke on condition of not being quoted by name, basically confirmed what several independent experts had told me—that the government sees the bill’s preamble as key to its withstanding a court test.

For those following this issue closely, here are some longer quotes from what that official from Justice Minister Peter MacKay’s department had to say earlier this week.

—On how Bill C-36’s preamble sets out purposes that are dramatically different from the objectives of the previous laws surrounding prostitution:

“It explains why Bill C-36 is making prostitution illegal. It clarifies that Parliament sees prostitution as an inherently exploitative activity that always poses a risk of violence, that prostitution would no longer be merely seen as creating neighbourhood disruption or disorder or nuisance. That’s not to say that wouldn’t be included, but the objectives are much broader in C-36.”

—On how the preamble’s declaration of Parliament’s desire to “denounce and discourage” the whole sordid sex trade is certain to colour any future court’s reading of the rest of the bill:

“So just as the legislative objectives of the existing offences served as a starting point for the Supreme Court of Canada’s Charter analysis in [last year’s Bedford ruling, which struck down the old prostitution laws], so too would Bill C-36’s new legislative objectives, as reflected in the preamble, serve as the starting point for any Charter analysis of the C-36 reforms.”

—On how Bill C-36 might change the way judges weigh Charter issues on the safety of prostitutes—for instance, the Supreme Court’s finding in the Bedford decision that sex trade workers should be able to communicate more freely with potential customers to try to screen out dangerous ones:

“I think we also have to come back to first principles and remember that prostitution is no longer a legal activity in the C-36 framework; it’s an illegal activity. It’s something that ought to be discouraged and deterred… We can’t be analyzing one provision in the absence of the overall context, which involves first of all the preamble and the legislative objectives, which signify a fundamental paradigm shift from treatment of prostitution as nuisance to treatment of prostitution as sexual exploitation.”