Jesse Kline
Full Comment

The state re-enters the bedroom with new legislation on prostitution

Pierre Trudeau had many deeply flawed ideas, but he was right about one thing: "There's no place for the state in the bedrooms of the nation."

The way this country deals with prostitution has traditionally followed the idea that the government has no business interfering in Canadians' private sex lives, so long as economic transactions for sexual services are conducted in private. Before the Supreme Court stuck down many of Canada's prostitution laws late last year, selling sex was perfectly legal, but practices that took place in public — such as negotiating on the street and running a brothel — were illegal.

This was better than criminalizing prostitution completely, because it gave sex workers and johns a legal way to engage in a voluntary economic transaction. But it also made life much more dangerous for those who worked in the sex trade.

The ban on keeping a common bawdy house forced many sex workers into the streets, denying them the opportunity to work indoors, away from inner-city violence. The prohibition on living off the avails of prostitution likewise prevented sex workers from hiring drivers and bodyguards. The prohibition on communicating for the purposes of prostitution meant that many of those involved in the sex trade were unable to properly screen their clients.

It was for these reasons that the Supreme Court ruled that the "restrictions on prostitution put the safety and lives of prostitutes at risk and are therefore unconstitutional." Yet in one fell swoop, the federal Conservatives have now invaded the bedrooms of Canadians, and shown they have little regard for economic freedom or the safety of those working the sex trade.

"The sale and purchase of sex has never been illegal in Canada," Justice Minister Peter MacKay said on Wednesday. "That changes today."

As expected, his Protection of Communities and Exploited Persons Act adopts an approach similar to the Nordic model that outlaws the purchasing of sex, while allowing prostitution itself to remain legal (if an economic transaction can be called "legal" when one side of it is outlawed).

Ironically, the bill does little to make life safer for sex workers. The prohibition on keeping a common bawdy house, which the Supreme Court said "prevents street prostitutes from resorting to a safe haven … while a suspected serial killer prowls the streets," remains in force. It is also still illegal to communicate "for the purposes of selling sexual services … in a public place." Even advertising those services on the Internet will, in many cases, be illegal.

In striking down Canada's prostitution laws, the Supreme Court's reasoning centred on the fact that the restrictions surrounding sex work were unconstitutional because the practice itself was perfectly legal. The government seems to be hoping that by making the transaction illegal for one-half of participants, its new law will hold up to future legal challenges. This, however, is far from certain. And it doesn't make it good policy.

A peer-reviewed study conducted in British Columbia and published earlier this week in the British Medical Journal Open found that an experiment in Vancouver to target pimps and johns instead of sex workers did not make the lives of those involved in the sex trade any safer.

"Sex workers continued to mistrust police, had to rush screening clients and were displaced to outlying areas with increased risks of violence, including being forced to engage in unprotected sex," reads the study. "While rhetorically powerful and politically appealing, there is a fundamental conceptual inconsistency in policies that criminalize clients and purport to prioritize the safety of sex workers."

Indeed, I cannot think of any other service for which selling is legal, but purchasing is not. It's fundamentally illogical to say that people have the right to sell the product of their labour — the philosophical basis upon which all voluntary economic transactions are based — but that someone else does not have the right to buy it. In a free society, with free speech and free markets, people should have the freedom to engage in any voluntary transaction that does not hurt anyone else — no matter how distasteful it may seem to some.

The Tories have doubled down on a policy that has made life more dangerous for sex workers and done nothing to decrease the prevalence of prostitution in the countries where it has been tried.

And in an unfortunate turn of events for the advocates who thought the Supreme Court's decision scored a blow for freedom, safety and security, there is a good chance they will be worse off because of this law, and be forced to spend tens of thousands of dollars and waste a considerable amount of time challenging it in court.