11 Pages Posted: 8 Jun 2014 Last revised: 13 Jun 2014

Date Written: June 12, 2014

Abstract

On 4 June 2014, Minister Peter MacKay tabled the much-anticipated Bill C-36, The Protection of Communities and Exploited Persons Act. The bill, which is a response to the Supreme Court of Canada’s landmark ruling in Bedford, has already been the subject of considerable criticism. In particular, critics contend that the proposed legislation will leave sex workers just as vulnerable as they were before Bedford. This has led some media commentators to suppose that the new offences are as constitutionally infirm as the provisions struck down in December.

There is nothing unreasonable in that view, but we should not rush to judgment. There are three reasons for this. First, the decision in Bedford was not, contrary to the thinking of many, based solely on the fact that the old legislation subjected sex workers to harm. It was also based on the kind of objectives that the offences set out to achieve. Those objectives have changed, and will be accorded far greater weight than those relied upon by the Crown in Bedford. Second, and related to the first point, the fact that the legislation explicitly sets out to discourage sex work arguably makes the burdens imposed on sex workers more constitutionally permissible. Indeed, there is a (slender) argument that the legislation no longer treats sex work as a lawful activity at all. This may not guarantee Bill C-36’s constitutionality, but it does throw up some significant barriers to those who would challenge it. Finally, though some of the new offences closely resemble those which were struck down, others have been substantially altered, and some raise issues never addressed by the Court in Bedford.