Several commentators have suggested the federal government’s proposed prostitution law is unconstitutional in light of the Supreme Court of Canada decision in
Canada (Attorney General) v. Bedford.
Be that as it may, there are other difficulties with the legislation. Specifically, the legislation may well criminalize activity, such as strip clubs, that the government did not intend to make illegal.
Earlier this month, the Conservative government brought in new legislation that criminalizes the buying of sex in response to the Supreme Court of Canada decision in
Bedford that declared several sections of the Criminal Code related to prostitution to be unconstitutional.
Most people see a difference between going to a strip club and hiring a prostitute. While perhaps not the most elevated form of entertainment, Canadians have long accepted strip clubs. Some readers may remember the litigation over Pandora’s Box in Ottawa in the early 1970s. Since then, strip clubs have been part of the Canadian landscape much like adult video stores and magazines.
Unfortunately and probably unintentionally, strip clubs may well fall under the federal government’s proposed protection of communities and exploited persons act.
The current legislation is too broad and requires clarity in some of the definitions. For example, the preamble includes the line: “Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity. . . .”
Under the legislation, anyone paying for “sexual services” is guilty of an offence with mandatory minimum sentences. The act provides that everyone “who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty” of an offence.
Such people will have a criminal record and a judge will not have the option of granting a discharge.
Note that the provision doesn’t define “sexual services.” Based on the preamble’s line about the objectification of the human body, “sexual services” must be defined broadly. It could, on a simple reading of the legislation, include paying people to take off their clothes so the viewer can obtain sexual gratification. Certainly, a lap dance performed for a paying customer would fall under the legislation.
Is it likely police will lay charges under the proposed legislation against someone getting a lap dance at a strip club? From my own experience, if a section in the Criminal Code can potentially apply to certain activities, some police officer somewhere will lay a charge and some Crown somewhere will prosecute.
The government can easily avoid all of this confusion by a simple legislative change defining “sexual services” in more detail. It may not resolve the larger constitutional questions but it at least focuses the debate on what really is at issue.
James Morton is a lawyer in Ontario and Nunavut. He has taught criminal and constitutional law in Canada and the United States.
