What is some background on ARPA’s involvement with prostitution?
Nine years ago, Canadian law underwent a major change in how it dealt with prostitution. Canada’s old laws classified prostitution as a public “nuisance,” but prostitution itself was not illegal, instead it was prostitution-adjacent activities that were illegal. It was illegal to have anything to do with running a brothel, live on the proceeds of prostitution, and communicate in public to facilitate prostitution. Three women who were or had been working in the sex trade challenged the laws. In Canada (AG) v Bedford, the Supreme Court ruled in favour of these women and declared that Canada’s laws on prostitution were unconstitutional. After the decision, Parliament passed a new set of very different laws entitled the Protection of Exploited Communities and Persons Act (PCEPA). The new law criminalized prostitution but provided legal immunity for the people who provided sexual services, essentially trying to target those who purchase sexual services and those who profit from selling the bodies of others (traffickers or pimps, for example). This means that any time someone purchases sex for money it is illegal, but, by law, the prostitute will not be prosecuted.
This approach to addressing prostitution is known as the “Nordic model,” based on its initial adoption and evident success in Nordic countries. This law is one that ARPA Canada advocated for even before the Supreme Court struck down Canada’s old prostitution laws. Those who provide sexual services, who are overwhelmingly women, experience a wide variety of harms including 1) sexual harassment that would be legally actionable in any other job setting, 2) verbal abuse, 3) physical assault, and 4) rape, you can read about these statistics in ARPA’s policy report here. These harms are overwhelmingly perpetrated by men who purchase sexual services or those who run a business by managing several prostitutes, i.e. pimps. Given these realities, a Nordic model is the best way to care for the vulnerable and bring justice to the oppressors.
Why is this back up for discussion?
The “Canadian Alliance for Sex Work Law Reform,” a group of advocates that includes one of the original applicants who challenged the laws in Bedford, is taking a second shot at challenging Canada’s prostitution laws. Their basic argument is that PCEPA is more unconstitutional than the previous bill because it makes it more difficult for prostitutes to avail themselves of several safety-enhancing measures that the Supreme Court identified as being necessary for prostitutes – working indoors, being able to screen their clients, etc. The Alliance argued that PCEPA violates prostitutes’ rights to life, liberty, and security of the person, and their right to equality, freedom of expression, and freedom of association.
ARPA was there in court – what did we say?
Here’s a simple breakdown of what ARPA argued in court:
- No matter what evidence is introduced in this case, the fact remains that Canadian courts at every level have consistently ruled that prostitution is a dangerous activity that harms women.
- To facilitate equality, the Constitution allows governments to make laws that have the express purpose of improving the situation of certain people or groups — and PCEPA does just that.
- In the freedom of expression context, there is a longstanding recognition that sexually explicit “expression” can lead to harm, especially against women and children.
- PCEPA was drafted specifically with freedom of expression in mind, and that is clear from what it makes illegal and what it does not.
- Our right to freedom of association has a particular purpose, which is people gathering to advance their conception of society or protect what they see as their rights. Freedom of association does not cover anything and everything we might do collectively.
A few observations about how the hearing went
One of the primary concerns that ARPA had before the case started was that the lawyers for the government would feel political pressure from the top not to argue their case too strenuously because the political party currently in government, the Liberal Party, promised the Alliance in 2015 that they would repeal PCEPA.
Thankfully, this was not the case. Lawyers from both levels of government, federal and provincial, put up a very vigorous defence of the PCEPA. The lawyer representing Ontario did a particularly good job in our opinion. She is the lead prosecutor of Ontario’s task force that focuses on Sexual Violence and Human Trafficking, which meant she brought an excellent perspective to the court as someone who gets to see daily how the law works on the ground.
Another observation from the courtroom is about the other interveners — the ones who intervened on the side of the Alliance. An intervener’s job is to bring a unique perspective to the court, but also to bring their legal expertise. Many of the interveners focused heavily on their organizations but their submissions were very light on legal content. Their attitude seemed to be that because of their identity, they deserved a particular legal result. On the one hand, it serves as an illustration of how an excessive focus on identity can cloud good decision-making. On the other hand, it serves as a reminder to ARPA not to shy away from presenting an explicitly biblical point of view with expertise.
What happens next?
The judge has reserved his decision, which means he will take time to write it instead of making an oral decision at the end of the week-long hearing. The last time there was a constitutional challenge to prostitution laws, the judge took an entire year to write the decision because of the immense amount of evidence filed. This case is no different; the record of evidence filed by the Alliance and the Government covers 157 exhibits. Since most of the exhibits are quite lengthy, the evidence page total is roughly 13,000. Comments from the judge lead us to believe that we might see this decision released in 6-9 months. If the judge rules that PCEPA is constitutional, there is a very good chance that the Alliance will appeal — their goal is the complete decriminalization of prostitution, and they appear ready and willing to take this case up to the Supreme Court.
If the judge rules that PCEPA, or parts of it, are unconstitutional, our biggest worry is that the federal government will do the same thing that it did in the context of euthanasia after a judge in the Quebec Superior Court ruled that the MAiD regulations were unconstitutional. Instead of appealing the decision, Attorney General David Lametti simply proceeded with re-writing the legislation. The consequence of that decision is that Canada is in a dire situation as we move ever closer to unfettered euthanasia. Hopefully, if PCEPA is declared unconstitutional the government will have the confidence to bring an appeal and allow the Nordic model the benefit of the doubt. We will keep you posted as this case develops.
Over the summer, ARPA Canada will be re-posting an old blog or article each Thursday. We hope that you enjoy these blasts from the past as we re-live some of the major content, issues, and campaigns of ARPA’s past 15 years.
The following article, written by Mark Penninga, was originally published in the Reformed Perspective Magazine and reposted on ARPA’s website in 2014. Given that three leaders and one interim leader of the Conservative Party have come and gone since then, with a new leader set to be announced in just a few weeks, the thought that we’d share this article noting the successes and failures of the last time there was Conservative government in Ottawa. What might we expect from a future Conservative government?
In a June 2011 article for Reformed Perspective I detailed 10 realistic goals that could be accomplished for our nation under this Conservative government if our leaders have the courage to lead and if citizens give them the encouragement and accountability to do so. Now that we are about halfway through this government’s mandate, how are we faring on these issues?
1. Give Aboriginals the responsibility and hope that belongs to all Canadians
Grade: B+
Not long after ARPA published a policy report on this issue in 2012, we were very encouraged to see the federal government announce a number of bills and policies to increase accountability, equality, and opportunity for Canada’s Aboriginal peoples. In June 2013, the First Nations Financial Transparency Act became law. Aboriginal MP Rob Clarke has also introduced a private member’s bill C-428 entitled the Indian Act Amendment and Replacement Act. And the government has also taken steps towards allowing private property ownership on reserves and increasing parental responsibility in education.
As encouraging as these changes are, they are small steps in light of the enormity of the problem. And given that the issue crosses into provincial responsibility, much more can also be done in having the provinces and federal government work towards a common vision.
2. Reform the Canadian Human Rights Commission
Grade: C-
In light of all the opposition from all sides of the political spectrum to problematic sections of the Canadian Human Rights Act, it is striking that it took a private member’s bill (Brian Storseth’s C-304) to finally abolish Section 13 in the summer of 2013.
This was a huge victory, but the current government can’t take much credit for it, apart from not actively opposing it. Much more can be done to reform or even abolish the Canadian Human Rights Commission.
On June 18th, the House of Commons adjourned, setting the stage for an election campaign that will end the 41st session of Parliament. This is an appropriate time to look back on the past four years and see what was accomplished, especially through the lens of ARPA Canada and the issues that we focus on.
Pre-born Human Rights:
When the Conservatives were handed a majority in the last federal election, many Christians hoped that pre-born human rights would finally be addressed. These hopes were in vain. Although some courageous MPs stood up for the pre-born, the leadership of all the political parties in the House of Commons did their utmost to suppress these efforts.
Motion 312, championed by MP Stephen Woodworth, was the first motion that held promise. It asked that “a special committee of the House of Commons be appointed and directed to review the declaration in Subsection 223(1) of the Criminal Code of Canada which states that a child becomes a human being only at the moment of complete birth.” Local ARPA chapters hosted presentations by Mr. Woodworth on this motion and many ARPA supporters encouraged MPs to support it. But with the party leaders all vocally opposed, the motion died in the House by a vote of 203 to 91. Yet Motion 312 reignited a discussion that was quiet for too long. Momentum for addressing this injustice was building.
With thankfulness to God, we are pleased to announce that Bill C-36, Protection of Communities and Exploited Persons Act, has passed third reading in the Senate and now only requires royal assent to become law. You helped table this law – thank you! As we have communicated before, we have been supportive of it since it was released last spring and are thankful it has come this far.
The bill needs only to receive royal assent, after which it will become law – in time for the December 19th deadline provided by the Supreme Court of Canada last year when they struck down Canada’s existing prostitution laws, ruling them unconstitutional.
If you have not yet done so, you can read the Bill here. It is “An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts” and is quite possibly the most impressive piece of legislation we have seen with our current government, we are pleased to stand behind it and thankful for you, our readers and supporters for engaging on this issue as far back as 2011 when it was the featured topic on that years’ ARPA Canada tour.
Press release from Member of Parliament Joy Smith can be read here.
Mark Penninga, Interior News, Sept 23, 2014: On September 15th, BC saw its first ever conviction of human trafficking under Canada’s Criminal Code. A 29 year-old man from Vancouver forced 11 teens, as young as 14, into prostitution. But this sure wasn’t the first time someone was trafficked in BC. The US Department of State estimates that there are between 1500 and 2200 people trafficked through Canada to the US each year, and that doesn’t include the trafficking that stays in Canada.
For those who think that this is a problem for bigger centres like Vancouver and Toronto but not in places like Smithers and Hazelton, think again. Public Safety Canada’s report on the issue reveals that it is Aboriginal women, youth, and children who are among the most likely victims in Canada.
The leading cause of human trafficking in our nation is for the purpose of sexual exploitation, usually through prostitution. Our Supreme Court struck down Canada’s prostitution law last year and gave Parliament one year to come up with a new one. The new legislation, Bill C-36, is excellent and worthy of our full support. For the first time in Canadian history, it makes the purchasing of sexual services a crime.
The Standing Committee on Justice and Human Rights has been listening to witnesses this week (July 7-11, 2014) as it relates to Bill C-36, Protection of Communities and Exploited Person’s Act. The media has been reporting on the hearings, but the coverage has not been all that balanced. Just as we saw with the Bedford v. Canada court case where only Ms. Bedford and other privileged prostitutes had their voice heard in court, it seems the media wants to undermine the voices of those who worked in the industry but who did not have a positive and empowering experience.
Typically, when we ignore the voice of the vulnerable and only want to support the privileged, society gets angry (the Occupy Movement, for example). In an effort to show a balanced view, please read the essay of former sex worker of 15 years, Katarina McLeod who attempts to have the voices of the silenced sex workers heard in the public sphere.
Thankfully, there are voices willing to speak against the tide. Margaret Wente does so with her article in the Globe and Mail, Is there a moral case against prostitution?
This week’s hearings on the government’s proposed new prostitution law represent a priceless opportunity to bash the Harper government for its clumsy, moralistic, ineffective and possibly unconstitutional attempt to suppress the world’s oldest profession. Opposition politicians are gleefully on the attack, and so are a fair number in the news media.
So let’s concede that the law is flawed, and let’s further concede that eradicating the sex trade is impossible. So what kind of law do the critics think should we have instead? Er, long silence.
When asked about his views on the core issue – whether prostitution should be more fully legalized – Liberal Leader Justin Trudeau ducks and weaves. “What we feel is that the government in its approach right now isn’t living up to what the Supreme Court asked it to do, which is to make sure that the most vulnerable people – the workers in the sex trade – are protected from violence,” he told Sun News last month.
In fact, Mr. Trudeau’s views on the morality of the sex trade are remarkably similar to those of the Conservative government.
The following article, “Report Card: Assessing Canada’s Conservative Government on 10 Key Issues” was originally published in the Reformed Perspective magazine. It has been updated and included here as a reference item for our readers. You can download a PDF of the updated version, linked at the bottom of the text if you wish to print a copy.
By Mark Penninga (Updated July, 2014)
In a June 2011 article for Reformed Perspective I detailed 10 realistic goals that could be accomplished for our nation under this Conservative government if our leaders have the courage to lead and if citizens give them the encouragement and accountability to do so. Now that we are about halfway through this government’s mandate, how are we faring on these issues?
1. Give Aboriginals the responsibility and hope that belongs to all Canadians
Grade: B+
Not long after ARPA published a policy report on this issue in 2012, we were very encouraged to see the federal government announce a number of bills and policies to increase accountability, equality, and opportunity for Canada’s Aboriginal peoples. In June 2013, the First Nations Financial Transparency Act became law. Aboriginal MP Rob Clarke has also introduced a private member’s bill C-428 entitled the Indian Act Amendment and Replacement Act. And the government has also taken steps towards allowing private property ownership on reserves and increasing parental responsibility in education.
As encouraging as these changes are, they are small steps in light of the enormity of the problem. And given that the issue crosses into provincial responsibility, much more can also be done in having the provinces and federal government work towards a common vision.
2. Reform the Canadian Human Rights Commission
Grade: C-
In light of all the opposition from all sides of the political spectrum to problematic sections of the Canadian Human Rights Act, it is striking that it took a private member’s bill (Brian Storseth’s C-304) to finally abolish Section 13 in the summer of 2013.
This was a huge victory, but the current government can’t take much credit for it, apart from not actively opposing it. Much more can be done to reform or even abolish the Canadian Human Rights Commission.
*Update: the mainstream media is sharing many of the talking points we use on this issue as well. Check out excellent commentary from Calgary Herald, National Post, Globe & Mail, and The Catholic Register.
As many ARPA readers know, the issue of prostitution has been a big one on our policy plate for the past few years. In the fall of 2011, ARPA Canada published its first Respectfully Submitted report on this issue, calling on the federal government to give serious consideration to rewriting our laws on prostitution to pre-empt the Supreme Court from striking down our current laws. The government did not act at that time, and the Supreme Court, in December 2013, did strike down our prostitution laws as we predicted. Thankfully, the Court gave Parliament one year to draft new laws. Today, they tabled the draft law titled, the Protection of Communities and Exploited Persons Act. The preamble sets the tone of the document and is quite impressive. It’s worth reproducing here. Note how it doesn’t shy away from the public harm that prostitution is and how the commercialization of prostitution is so detrimental: