On Bill C-36, Prostitution and its Regulation

There does not appear to be a perfect answer in this debate. The rights of some will be curtailed to support the rights of others. Sometimes that is what the law is forced to do. But it seems to me, to us, that the vast majority of people in the sex industry have been shown to be there as the result of poverty, oppression, and exploitation. The only way they can be protected is by abolishing prostitution. The proposed law attempts to do that. The only way that they can be encouraged to seek help is by decriminalizing their part in prostitution and by creating an environment of safety and support that gives them viable exit options. This legislation attempts to do that.

  •  Our statement on why are we supporting Bill C-36, Timea Nagy of “Walk with Me”


Before dealing with the Constitutional Issues, Bill C-36 is doomed to fail because it will not deal with the necessary issues surrounding the issue of paid sex work.

The Government has forwarded a simple argument: the difference between “trafficking and prostitution” is negligible, unintelligible or unrecognizable. Or in the words of Timea Nagy, “The difference between the two is only a matter of degree.” However, this conflating of missing aboriginal woman, economic needs, forced adult prostitution, child sexual abuse, underage prostitution and human trafficking (including sex trafficking) leads us down a false rabbit hole: A rabbit hole in which nothing will be accomplished. For in a world where we conflate immoral acts, illegal acts and distasteful acts, we will always regulate the distasteful acts as if they are immoral or illegal.

Think of alcohol. In the 1920’s, after nearly a century long battle, the Temperance Movement succeeded in banning alcohol in the US and in many places in Canada. Now at the time, widespread alcoholism was causing all sorts of problems. Men would often go to a saloon, bar or pub after work and spend much of their wages. After doing so, they would get into public brawls or preform lewd public acts. After getting home, they might abuse their wife or family. Given the increased move to mechanization, one could imagine situations where men might have caused themselves or other serious injury due to a hangover or exhaustion cause by the previous night’s antics. It is clear that the distasteful act of public intoxication had real social costs.

However, instead of trying to manage those acts, Governments throughout North America tried to ban the sale of liquor, spirits, beer and wine. The reaction was intense. In ten years, the Government policy -known as Prohibition – spawned organized criminal operations whose only purpose was to make and distribute alcohol. Through “Speakeasies”, citizens found a way to satisfy their need for alcohol. The “rebellion” was so strong that much of the infrastructure that had been created in the 1920’s was gone nearly ten years later.

In the same way, Bill C-36 will likely be a failure because it takes a multifaceted problem – one with immoral, illegal and distasteful components – and gives them a one size fits all solution.

Think about it. When Timea Nagy – a Bill C-36 supporter- spoke, she noted that she went to the sex trade industry twice. In her words, she said:

“I originally entered the sex industry when I was forced into it by traffickers, and some time after my rescue I went back to the business for a few months, responding to a huge financial crisis.”

I would ask you to hold onto the words “financial crisis”. She noted that she returned to the sex trade because “with no money, no access to social programs, no employable skills, and enormous debt, I did what I had to, to not become homeless, and to be able to buy food.” So Ms. Nagy’s own experience tells us, because of holes in Canada’s social safety net, there is a segment of those who are sex workers who act out of need. Now, that could be for their own needs or the needs of children but the need leads us to the same place: money is required for survival. The problem is that Bill C-36 does not differentiate between the needs of a prostitute to make money for survival and the possible immoral or criminal actions of a pimp who might live off of the avails of prostitution.

Or put differently, if the Tories wanted to get prostitutes off of the street, any criminal bill should be followed with funds available for the training or retraining of prostitutes. Now the retraining funds could be directly spent by the federal government or could be sent to the provinces or individuals as a transfer payment. However, the lack of such a retraining fund would indicate that some people who are in need of money might take money in exchange for sex. Consequently, as Ms. Nagy so eloquently argued, if “Prostitution always involves a power imbalance between a customer who pays to have their pleasure met, and a person who is hired to act like a sex puppet”; then Bill C-36 will not change that dynamic. It will merely perpetuate it in ever scarier places. For the need of certain prostitutes to make ends meet will not be diminished by a change in criminal law.

The conflation of causes of prostitution is further seen when one equates forced sex, child sexual abuse and human trafficking and other immoral behaviour with the economics of a potential legal industry. Just think about it, under the government’s present bill, the status quo for prostitution would remain. While prostitutes themselves would not be charged, their customers/Johns would be. If that is the case, “customers/Johns” would only look for prostitutes who are away from peace officers. Pimps, prostitutes and the rest of the sex trade community would get the hint: Find darker allies and hidden areas to conduct business. This would mean that those who are in the most need of help would be even further away from it.

Criminalizing the John, commonly known as the Nordic Model, has been controversial ever since it was first used in Sweden. While the model seems to reduce visible prostitution, it only seems to stabilize or increase hidden or invisible prostitution. Accordingly, one can conclude that Swedes go to the internet or word-of-mouth to find their prostitutes. If that is the case, one could easily see that a prostitute could be easily brutalized. Just remember the Craig List Killer in the US, invisible prostitution doesn’t equate to safety for those in the trade.

So what is my solution? Simple. It is the solution that has worked in the Netherlands and New Zealand. Legalize and Register Brothels; while making street prostitution illegal. Legalized brothels would work in a similar way to a construction company, financial institution, a doctor’s or dentists’ office. So the only women, men or transgendered people who could sell sex would be those who were licensed by a national body in a place that was licensed by a national body.

Each licensed sex worker would be licensed for a short period of time (i.e. 6 months). To recertify, a doctor would have to do an investigation to ensure that no STI’s were present. The blood work and tests would ensure the public’s health.

Like other professionals – including doctors, financial professionals or accountants, the State could require licence-holding sex workers to hold privately-provided, privately-held insurance. That insurance would protect licensed sex worker against disability including sexually transmitted diseases. This would mean that there would be enough there to pay a disability income and transition training. While the extensive insurance programme would provide liability and errors & omission insurance to protect customers. This would also be true of the brothel which should be licensed, have a similar type of insurances, regular safety and immigration audits.

Legalizing and Registering Brothels, while making street prostitution illegal would do three things. First, it would conserve our police resources. Like most professionals, sex workers licences and fines would pay for the enforcement system. Sex Workers and their clients would pay for the enforcement officers, the doctor’s tests, psychologist assessments and all other costs that go along with the system. Furthermore, forcing brothels to become legal businesses would likely force out most pimps and the criminal element who use drugs, violence or intimidation to get their way. Woman would no longer be shipped between provinces because they would have to have their license no matter where they were. If they wanted to leave the system they could because no pimp would be trying to stop them. In fact, transition services could be mandated as a responsibility of the legalized brothel, the government or third party groups. Lastly, licenced brothels could not use illegal aliens or underage staff. In one fell swoop, we could increase resources to deal with child exploitation, human trafficking, sexual trafficking, sexual exploitation of a whole bunch of people and increase our monitoring of STIs.

The other side of that is the existing vice police officers could concentrate their effort on the few remaining illegal purveyors of sex. These would be the worst of the worst. They would likely be criminals that use those who are under the age of consent or those who prey on illegal aliens or worse. Consequently, legalizing some sex workers – the distasteful acts – provides more resources to go after those immoral acts which are truly abhorrent.

Lastly, this type of change would change the economics of illegal prostitution. It would make it more expensive to conduct such an operation from both a demand and a supply perspective. Think about it. Over the last hundred years we have seen that legalizing a number of products has brought down the cost and virtually eliminated illegal production. This could be seen as early as the ending of alcohol prohibition and as recently as the introduction of cheap, downloadable and legal digital media. Legal, licensed and registered brothels with licensed sex workers would reduce the need for illegal prostitutes. Additionally, with a smaller amount of prostitutes to deal with, police officers can use their limited resources to make it more expensive to traffic adults and children. Creating a legal market for the exchange of sex services coupled with continuing to criminalize child exploitation, human trafficking, sexual trafficking and sexual exploitation is not any different from solutions that have been applied to cigarettes, alcohol and pornography. As a result, it will work.

This approach will work because it is similar to the approach that we take toward other industries. The CRTC, for example, registers and licenses all cable companies; telephone companies; radio, television, satellite radio, satellite television and cable stations. Consequently, the only signals that Canadians can pick up are legal ones. The Do Not Call Registry, also run by the CRTC, has caused a large reduction in the number of telemarketing calls; while the new anti-spam legislation (CASL) – a registry by a different name – is supposed to work the same way.

So that is the argument: legalizing prostitution while continuing to criminalizing child exploitation, human trafficking, sexual trafficking and sexual exploitation. There is objective evidence that shows that legalizing prostitution would reduce harm, while it would seem to fall in line with the Supreme Court decision which started this conversation. But more importantly, from a Liberal Point of View, such a proposal will allow for police resources to be used more effectively. For police resources would not just go to trying to get rid of all prostitution; they would be focused on trying to eliminate criminalizing child exploitation, human trafficking, sexual trafficking and sexual exploitation. In other words, we will focus not on distasteful acts but on acts which 90%+ of Canadians can agree are immoral. By using police resources more effectively, we are obviously benefiting society. But this is not the only benefit. Through working with legalized sex workers, our Government can only ensure that their health and safety is protected. In doing this we can reduce STIs and costs on our health care system. All acts which benefit our society. So the truth is, that like the end of the prohibition of alcohol or the revisions of the tobacco controls in the 1990s, we would likely have a more societal gain from the legalization and regulation of prostitution then to have an illegal system control by pimps, drug cartels, organized crime and other questionable, “black market players. This solution is not perfect but it balances the rights of sex workers, victims of prostitution, communities and society. It provides an improvement in the public good; while no one bares the cost. It is a solution that should be considered.

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