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Canada's Having a Prostitution Debate, Just Not an Informed One

06/03/2014 12:31 EDT | Updated 08/03/2014 05:59 EDT
Hillary Fox via Getty Images

On Monday, the Government released a report on its consultations regarding Parliament's response to the Supreme Court decision last December striking down several prostitution-related offences in the Criminal Code. Regrettably, the information made available about the consultations raises more questions than it answers, and leads one to query whether an informed debate will occur.

While over 30,000 Canadians participated in the online consultation, the actual submissions will not be released; rather, only the statistical abstract made public yesterday. When asked whether the Minister of Justice would review responses, the answer was that only "some" of the answers would make their way to the Minister of Justice's office, without a clear explanation how submissions were selected for this purpose.

Further, while an in-person consultation was held, the Government's information indicates 20 groups were invited to a single session lasting approximately two hours -- and many of the groups present focused on the issue of human trafficking rather than sex work.

It would, of course, be premature to judge the Government's legislation prior to it being tabled. However, one has to wonder whether the government's consultation could be a meaningful one when it speaks of an imminent legislative response after tabling a bare-bones statistical analysis of responses to questions some have suggested were biased to begin with, in part because they were framed as informing the Government's "response" to the Bedford case.

This is a first point of important reflection: How and when did the Government determine it needed to respond at all? The Supreme Court struck down three prostitution-related offences -- allowing Parliament one year to re-write them if it so chooses -- but one option has always been to leave the Court's decision in place without introducing new legislation. Yet, now the government insists not only that a response is needed, but a legislative one at that.

This raises a second concern, namely whether the response itself will be constitutional. Few of the groups invited to the in-person consultation have a primary function related to providing legal information or advice. The current Government's record when it comes to enacting constitutional legislation is highly suspect. The last thing we should be doing is enacting legislation that is likely to result in protracted litigation, and that risks being struck down for the same reasons that the Court provided last December.

Yet, by now providing a report that seems to indicate only public opinion, we are ignoring the question of whether what is popular actually complies with the Charter. Regrettably, the report does not address this issue and it will be up to Parliament to inform itself of the constitutionality of any legislation, regardless of the Government's contentions thereupon.

Another concern is the Government's seeming conflation of sex work with human trafficking. Indeed, much of the rhetoric thus far from the Government -- and its in-person consultation invitees -- has focused on the issue of trafficked women, yet not all persons in sex work are trafficked and not all trafficked persons are forced into sex work. By conflating them, the government is likely to produce policy with undesirable results for sex workers and victims or survivors of human trafficking.

As a simple example, sex workers who encounter a trafficked woman may be much more likely to alert police if they can do so without fear of criminal repercussions for having to reveal themselves as sex workers.

Thus far, the meetings sought suggest that the government intends to focus on trafficking alone, and on the repercussions that fall under the Criminal Code. Yet, to focus only on trafficking -- and only on Criminal Code provisions at that -- is to oversimplify, if not disregard, the multi-faceted societal issues at play. Indeed, the government appears to have chosen a myopic approach, ignoring the issue's relation to labor laws, immigration laws and cooperation between the federal government and municipalities which enforce laws and themselves enact regulations that may need to be modified. The government has also failed to seek consultation in any of these areas, though the policy discussion would certainly have benefited from all three.

It should be obvious that Criminal Code cannot -- nor should it be expected to -- address all matters of societal order. Put another way, prison is not a solution to many of the difficult questions society faces, but is regrettably being used more and more for this purpose.

Given all of these concerns, and the manner in which the government has handled the issue thus far, one must be troubled about the extent to which government action will be well-informed.

Indeed, if the new law is not to create the same problems -- constitutional and otherwise -- as the old one, it must be based on broad consultations that seek out specialized expertise, as well as public opinion. The Government's public consultations may tell us what is popular among respondents, but what it popular is not always right or most likely to be effective.

Regrettably, by steering the debate in one direction and limiting the time allotted for it, the Government has put Parliament on a questionable course unlikely to yield the informed debate we all must seek.

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