The federal government’s new law governing prostitution is set to be released tomorrow, apparently, and the most important question that comes to mind is whether the new law will be any more compatible with the Charter of Rights than the provisions the Supreme Court struck down late last year.

The Court struck down laws restricting public communications for the purposes of prostitution, living off the avails of prostitution and the keeping of a bawdy house. In each instance, the central concern for the Court was that each of these restrictions increased the risk of harm to sex workers in either an arbitrary or grossly disproportionate manner, thereby violating their “security of the person” under section 7 of the Charter, because they either forced prostitution “under ground” and thus to a more dangerous context for the sex worker or prevented them from taking measures to protect themselves, such as the ability to hire security.

The government is touting the fact that it conducted an online survey soliciting the public’s opinion on the matter. When it comes to Charter rights, public opinion should arguably play only a tertiary role in deciding what policy to implement.

It is widely expected that the Conservative’s response legislation will criminalize the purchasing of sex (as opposed to the selling of sex), often referred to as the “Nordic model” of regulating prostitution. Critics of this model argue that it raises many of the same unnecessary dangers for sex workers, in large part because they will still be forced to conduct business in less public – and less safe – contexts.

It is not entirely clear how the Court might view such a law. In her unanimous decision for the Court, the Chief Justice writes:

I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter.  That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.  Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined.  They impact on each other.  Greater latitude in one measure ”” for example, permitting prostitutes to obtain the assistance of security personnel ”” might impact on the constitutionality of another measure ”” for example, forbidding the nuisances associated with keeping a bawdy-house.  The regulation of prostitution is a complex and delicate matter.   It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.

The Court has clearly left Parliament with a fair bit of room to regulate (and certainly more than advocates of total decriminalization are likely to support). As is often the case when it comes to Charter issues, the fine details of the bill will likely matter a great deal in assessing its reasonableness.

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Emmett Macfarlane is an associate professor of political science at the University of Waterloo. His research focuses on the intersection of governance, rights and public policy, with a particular emphasis on the policy impact of the Charter of Rights and Freedoms and the Supreme Court of Canada.

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