John Ivison
Full Comment

p. A6.

MacKay's effort sure to be struck down

Shelves $175,000 survey as it didn't fit Tory resolution

Peter MacKay's role as Attorney General of Canada requires him to be the guardian of the rule of law. He is mandated to protect the personal liberties of Canadians and advise Cabinet to ensure its actions are legal and constitutional.

By introducing a new law on prostitution that is all but certain to be struck down by the courts, he has failed on all counts.

The new law makes it an offence for the first time in Canada to purchase sexual services, or to communicate in any place for that purpose. It makes it an offence to receive a material benefit from sexual services and it prohibits the advertising of sexual services in newspapers or online.

The main targets are "the perpetrators, the perverts, the pimps," according to Mr. MacKay. But it also takes aim at prostitutes, if they try to sell sexual services in "public places" where people under 18 might reasonably be expected to be present.

Last December, the Supreme Court struck down the existing law on prostitution, on the basis that it diminished the security of sex workers, in violation of section 7 of the Charter of Rights.

There have been a number of studies conducted, before and since the Supreme Court decision, on the impact of shifting the guilt burden from sellers to purchasers, including one conducted in Vancouver and published in the British Medical Journal. None suggest the well-being of sex workers is enhanced — the key ingredient of any constitutional law.

When johns are targeted, prostitutes continue to take steps to avoid police detection; they are unable to screen clients and remain at risk of violence, abuse and HIV.

Prohibition of the purchase of sex is as likely to violate sex workers' rights of security in the eyes of the Supreme Court, as prohibition of the selling of sex.

This bill is likely to make life even more unsafe for many prostitutes. If they can't advertise their services to persuade the johns to come to them, many more are likely to take to the streets in search of business.

The government says it will spend $20-million to assist sex workers to leave the industry. But does Mr. MacKay seriously think this is going to reduce the number of women selling sex — or improve the lot of those who remain?

None of this bodes well for the long-term survival of this legislation.

If the new law is deemed to be "grossly disproportionate," the burden of proof will shift to the government to justify itself.

Mr. MacKay knows this law will not stand constitutional scrutiny. But it could take years for a challenge to reach the Supreme Court and in the meantime, the new law will hold sway.

The cynicism that marked its introduction has mirrored the farce of the public consultation process. As La Presse revealed Wednesday, a $175,000 survey on public attitudes toward prostitution was commissioned by the government but Mr. MacKay was warned in a memo by Justice officials in January that the results may contradict government policy. The report was promptly shelved and the results won't be published until the new bill has been sent to committee.

Instead, the government published an online consultation that fit with its preferred result — a majority suggesting the purchase of sexual services should be an offence.

The problem from day one for Mr. MacKay was that the Conservative Party's members adopted a resolution that rejected the legalization of prostitution and called for a new law that targeted the purchasers of sex at its convention last November.

The emphasis in the new bill is to protect communities — an admirable goal. But that could equally have been done in a way that was consistent with the constitution.

The party's preferred option ruled out the adoption of an alternative model — the decriminalization and regulation of prostitution.

This is unfortunate. Countries like New Zealand have moved in that direction and found, while there was no dramatic change in the number of people involved in the sex industry, there was an improvement in safeguarding the rights of workers to refuse particular clients.

Adopting this model would have given Canada a new law robust enough to survive further Charter challenges.

As it is, the reputation of the office of the Attorney-General has been tarnished, hundreds of thousands of dollars of public money have been wasted on surveys that reveal inconvenient truths and a stop gap law that will need to be re-written has been imposed.

The decision should have been based on the evidence. Instead, it smacks of the Queen of Hearts' logic: sentence first, verdict afterwards.