[SWAF-Potluck] MacKay's effort sure to be struck down

[Andy Sorfleet]

http://fullcomment.nationalpost.com/
NATIONAL POST
Thursday, June 5, 2014

John Ivison, Full Comment



p. A6.

MacKay's effort sure to be struck down

Shelves $175,000 survey as it didn't fit Tory resolution

[photo caption]
Justice Minister Peter MacKay tells an Ottawa news conference on
Wednesday that the government intends to criminalize the purchase of
sexual services. the targets are "the perpetrators, the perverts, the
pimps," MacKay says.
photo: Sean Kilpatrick/The Canadian Press


Peter MacKay's role as Attorney General of Canada requires him to be
the guardian of the rule of law. He is mandated to protect the
personal liberties of Canadians and advise Cabinet to ensure its
actions are legal and constitutional.

By introducing a new law on prostitution that is all but certain to be
struck down by the courts, he has failed on all counts.

The new law makes it an offence for the first time in Canada to
purchase sexual services, or to communicate in any place for that
purpose. It makes it an offence to receive a material benefit from
sexual services and it prohibits the advertising of sexual services in
newspapers or online.

The main targets are "the perpetrators, the perverts, the pimps,"
according to Mr. MacKay. But it also takes aim at prostitutes, if they
try to sell sexual services in "public places" where people under 18
might reasonably be expected to be present.

Last December, the Supreme Court struck down the existing law on
prostitution, on the basis that it diminished the security of sex
workers, in violation of section 7 of the Charter of Rights.

There have been a number of studies conducted, before and since the
Supreme Court decision, on the impact of shifting the guilt burden
from sellers to purchasers, including one conducted in Vancouver and
published in the British Medical Journal. None suggest the well-being
of sex workers is enhanced -- the key ingredient of any constitutional
law.

When johns are targeted, prostitutes continue to take steps to avoid
police detection; they are unable to screen clients and remain at risk
of violence, abuse and HIV.

Prohibition of the purchase of sex is as likely to violate sex
workers' rights of security in the eyes of the Supreme Court, as
prohibition of the selling of sex.

This bill is likely to make life even more unsafe for many
prostitutes. If they can't advertise their services to persuade the
johns to come to them, many more are likely to take to the streets in
search of business.

The government says it will spend $20-million to assist sex workers to
leave the industry. But does Mr. MacKay seriously think this is going
to reduce the number of women selling sex -- or improve the lot of
those who remain?

None of this bodes well for the long-term survival of this legislation.

If the new law is deemed to be "grossly disproportionate," the burden
of proof will shift to the government to justify itself.

Mr. MacKay knows this law will not stand constitutional scrutiny. But
it could take years for a challenge to reach the Supreme Court and in
the meantime, the new law will hold sway.

The cynicism that marked its introduction has mirrored the farce of
the public consultation process. As La Presse revealed Wednesday, a
$175,000 survey on public attitudes toward prostitution was
commissioned by the government but Mr. MacKay was warned in a memo by
Justice officials in January that the results may contradict
government policy. The report was promptly shelved and the results
won't be published until the new bill has been sent to committee.

Instead, the government published an online consultation that fit with
its preferred result -- a majority suggesting the purchase of sexual
services should be an offence.

The problem from day one for Mr. MacKay was that the Conservative
Party's members adopted a resolution that rejected the legalization of
prostitution and called for a new law that targeted the purchasers of
sex at its convention last November.

The emphasis in the new bill is to protect communities -- an admirable
goal. But that could equally have been done in a way that was
consistent with the constitution.

Does MacKay seriously think this is going to reduce the number of
women selling sex -- or improve the lot of those who remain?
The party's preferred option ruled out the adoption of an alternative
model -- the decriminalization and regulation of prostitution.

This is unfortunate. Countries like New Zealand have moved in that
direction and found, while there was no dramatic change in the number
of people involved in the sex industry, there was an improvement in
safeguarding the rights of workers to refuse particular clients.

Adopting this model would have given Canada a new law robust enough to
survive further Charter challenges.

As it is, the reputation of the office of the Attorney-General has
been tarnished, hundreds of thousands of dollars of public money have
been wasted on surveys that reveal inconvenient truths and a stop gap
law that will need to be re-written has been imposed.

The decision should have been based on the evidence. Instead, it
smacks of the Queen of Hearts' logic: sentence first, verdict
afterwards.