Charlie Smith

Ontario judge rules that Peter MacKay's sex-trade law violates Canadian Charter of Rights and Freedoms

When a former Conservative justice minister, Peter MacKay, introduced amendments to the Criminal Code 2014 to combat the sex trade, he claimed that his approach was "carefully tailored to address the specific vulnerability of those involved."

In the process of "carefully" changing the law, he decided to create four new crimes.

A purchasing offence — which criminalized those who paid for sexual services — could be prosecuted as an indictable crime, with a maximum penalty of five years in jail.

Or the Crown could choose proceed through a summary offence, with a maximum sentence of up to 18 months in jail.

There were also similar penalties imposed against those who advertised the sale of sexual services.

"Victims", i.e. sex workers, who advertised were not vulnerable to prosecution. But if their adult clients paid in a consensual arrangement, they could be charged, according to the Protection of Communities and Exploited Persons Act.

Other new measures included a ban on procuring and on others materially benefiting from the sex trade.

At the time, he was applauded in Parliament by prohibitionist, social conservative, and then Conservative MP Joy Smith, who described his legal handiwork as an "absolutely fabulous bill."

Judge says law violates charter rights

Today, an Ontario judge struck down the advertising ban, concluding it wasn't a reasonable limit on the constitutional right to freedom of expression.

Justice Thomas McKay also ruled the sections against procuring and obtaining material benefits weren't reasonable limits on the constitutional right to security of the person. So they were tossed out, too.

The decision came in a case involving an escort agency — Fantasy World Escorts — that had been charged in 2015.

Peter MacKay, who's now running for the Conservative party leadership, introduced these measures after the Supreme Court of Canada unanimously struck down three prostitution laws in 2013 as unconstitutional:

• keeping a common bawdy house;
• communicating in public for the purpose of selling sex;
• and living off the avails of the sex trade.

"They do not merely impose conditions on how prostitutes operate," wrote then chief justice Beverley McLachlin at the time. "They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."

Peter MacKay's subsequent amendments to the Criminal Code, then known as Bill C-36, were widely condemned by sex workers and public-health officials.

MacKay's critics blasted his legislation

Recently deceased Vancouver sex worker Jamie Lee Hamilton told the Straight in 2014 that MacKay was wrong in characterizing all sex workers as "victims".

She also declared — and has now been vindicated posthumously — that the former justice minister's legislation contradicted the spirit of the Supreme Court of Canada's ruling in 2013.

Speaking before the Commons justice committee on July 7, 2014, MacKay claimed that his legislative changes would pass any constitutional test. He's since been proven wrong.

Some of the most scathing comments about MacKay's legislation came from Simon Fraser University sex-trade researcher John Lowman, who characterized them as the "institutionalized entrapment of men".

"Everything he [MacKay] has said has convinced me that this can’t stand up to constitutional muster," Lowman told the Straight at the time.

That same year, Dr. Kate Shannon, director of the Gender and Sexual Health Initiative as the B.C. Centre for Excellence in HIV/AIDS, told the Straight that MacKay's legislation "goes many steps further towards exacerbating the negative effects of criminalization on sex workers' health, safety, and human rights".

"Unfortunately, the Conservative government continues to blatantly disregard evidence and a unanimous decision by our highest court," Shannon declared at the time. "After decades of missing and murdered women, C-36 is a devastating policy disaster and a complete disregard of human rights of some of the most marginalized women, men, and transgender individuals in our society."

Trudeau disappoints sex workers

There were high hopes among sex workers and their allies that the Liberal government would amend the legislation after winning a majority government in 2015.

But Prime Minister Justin Trudeau and his two justice ministers — Jody Wilson-Raybould and David Lametti — chose not to pursue this issue.

That prompted several participants at last year's annual Red Umbrella march for sex workers' safety to express their exasperation to the Straight.

One of them, the recently deceased Hamilton, said she was "really disappointed" in Vancouver Centre MP Hedy Fry and Trudeau for not amending the Conservative legislation to offer greater protection for sex workers.

An organizer of march, Triple-X Workers' Solidarity Association of B.C. president Andrew Sorfleet, said he simply had "no hope in these Liberals."

"We are not allowed to collect money from sex workers and we are not allowed to collect money in order to promote their business in any way," Sorfleet told the Straight at the event. "That's what a professional association or union would be doing. We would be breaking the law."