Disrupting C-36

The Economist has published a lengthy and informative “briefing” on the ways in which the internet is changing prostitution ― often, although not always, for the benefit of sex workers. As it explains, the effects of new technologies on what is usually said to be the oldest profession are far-reaching, and mostly positive ― insofar as they make sex work safer than it used to be. If the federal government had been concerned with protecting sex workers, and if Parliament had truly “ha[d] grave concerns about … the risks of violence posed to those who engage in” prostitution, as it affected to be in the preamble of the so-called Protection of Communities and Exploited Persons Act, S.C. 2014 c. 25, better known as Bill C-36, they would have considered the internet’s potential for benefiting sex workers.

But as the government’s and Parliament’s chief concern was apparently to make prostitution vanish by a sleight of criminal law’s heavy hand, its middle finger raised at the Supreme Court, they instead sought to drive sex workers off the internet. The new section 286.4 of the Criminal Code, created by C-36, criminalizes “[e]veryone who knowingly advertises an offer to provide sexual services for consideration,” although section 286.5 exempts those advertising “their own sexual services.” In other words, if a sex worker has her own website, that’s tolerated ― but if she uses some other service, or at least one geared specifically to sex workers and their potential customers, the provider of that service is acting illegally.

Meanwhile, according to the Economist, in the market for sex, as in so many others,

specialist websites and apps are allowing information to flow between buyer and seller, making it easier to strike mutually satisfactory deals. The sex trade is becoming easier to enter and safer to work in: prostitutes can warn each other about violent clients, and do background and health checks before taking a booking. Personal web pages allow them to advertise and arrange meetings online; their clients’ feedback on review sites helps others to proceed with confidence.

Above all, the ability to advertise, screen potential clients, and pre-arrange meetings online means that sex workers need not look for clients in the most dangerous environment for doing so ― on the street. Besides, “the internet is making it easier to work flexible hours and to forgo a middleman,” and indeed “it is independent sex workers for whom the internet makes the biggest difference.”

The internet is also making sex work safer. Yet the work of websites that “let [sex workers] vouch for clients they have seen, improving other women’s risk assessments,” or “where customers can pay for a background check to present to sex workers” is probably criminalized under the new section 286.2(1) added to the Criminal Code by C-36, which applies to “[e]veryone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1)” ― the “obtaining sexual services for consideration” offence. Forums where sex workers can provide each other with tips and support can be shut down if they are associated with or part of websites that advertise “sexual services.”

As the Economist points out, the added safety (both from violent clients and law enforcement), convenience, and discretion can attract more people into sex work. So trying to eliminate the online marketplace for sex makes sense if one’s aim is, as I put it here, “to drive people out of sex work by making it desperately miserable” ― but that’s a hypocritical approach, and not what C-36 purports to do.

In any case, criminalization complicates the work of websites that help sex workers and their clients, but does not stop it. They are active in the United States, despite prostitution being criminalized in almost every State ― though they pretend that their contents are fictional. They base their activities in more prostitution-friendly jurisdictions. A professor interviewed by the Economist points out that a ban on advertising sexual services in Ireland “has achieved almost nothing.” There seems to be little reason to believe that the ban in C-36, which has a large exemption for sex workers advertising themselves, would fare differently.

The Economist concludes that “[t]he internet has disrupted many industries. The oldest one is no exception.” Yet the government and Parliament have been oblivious to this trend, as they have been oblivious to most of the realities of sex work. One must hope that courts, when they hear the inevitable challenge to the constitutionality of C-36, will take note.


I would like to ask Peter MacKay, the federal Injustice Minister, some questions about the federal government’s proposal for regulating prostitution out of existence, Bill C-36. The immediate inspiration for these questions is the story of Mike Allen, a Progressive-Conservative member of the Alberta legislature, who pleaded guilty in Minnesota to charges resulting from his attempt to hire two sex workers while visiting the state. Unfortunately for him, the women to whose ad he responded were undercover police officers. Mr. Allen had had to leave the PC caucus, but his colleagues have now voted to allow him to rejoin them.

My first question is whether Mr. MacKay would be brave enough to call Mr. Allen a pervert ― which is how he described people who use the services of sex workers ― to his face, and not just to moralize in the abstract. A second, related, question is what Mr. MacKay thinks of Mr. Allen’s caucus colleagues, who presumably have concluded that his actions were not especially reprehensible. Are they perverts too? Or do they just lack Mr. MacKay’s especially fine moral judgment?

Another set of questions concerns police investigations like that which ensnared Mr. Allen, involving women officers posing as sex workers. Are such tactics going to be used in Canada, if Bill C-36’s provisions criminalizing the purchase of sex become law? If not, what in Bill C-36 makes it so? If yes, does Mr. MacKay think that this is a good thing? More specifically, does Mr. MacKay think that these tactics comport with the dignity of the officers who have to pose as prostitutes ― as persons, as women, and as police officers? Do they respect gender equality, which he purports to advance by prohibiting the purchase of sex?

In a somewhat different vein, I would also be curious to know whether Mr. MacKay thinks that it is a good idea to expend police resources on such investigations. Is it worthwhile to employ officers to lure potential consumers of sexual services? Is it a better use of their time than, say, investigating actual human trafficking or other cases where people are actually forced into sex work? Or a better use of taxpayer money than helping actual victims of such practices?

I would like to know, in a nutshell, what it is that Mr. MacKay thinks that we as a society gain by having a Mr. Allen prosecuted and condemned, except assuaging a lust for what Jonathan Kay, of all people, has described as “punitive, obsessive, politically cynical moral absolutism” ― a lust which even people who might be expected to support the government do not share (as Mr. Kay’s example shows). This lust, indeed, makes me think that the real perverts who threaten us are not the Mr. Allens of this country, but the Mr. MacKays.


Sex and Cigarettes

In defending the provisions of the Criminal Code relative to prostitution which the Supreme Court ultimately invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, the federal government argued that their goal was to deter prostitution ― which, however, they did not criminalize. Presumably, given their effects, which were mostly to expose sex workers to violence from clients and pimps, these provisions were supposed to make them too afraid of sex work to keep at it. (The Supreme Court, I should note, did not accept the government’s characterization of the prostitution provisions’ purpose.)

As I wrote in discussing the Bedford decision, this is a hypocritical approach ― “[n]ot criminalizing prostitution but hoping that if we make it awful enough it will go away.” Unfortunately, Bill C-36, the federal government’s proposed response to Bedford, in many ways doubles down on this approach of hoping to drive people out of sex work by making it desperately miserable, without prohibiting them from engaging in it (although it does criminalize the sex workers’ clients). In the case of sex work, this strategy has attracted withering criticism, and rightly so.

But in at least one other context, it is deployed without any protest. When it comes to government attempts to deter smoking, hardly anyone these days thinks it wrong to disgust smokers into quitting (or to disgust potential smokers into not taking up the habit), while not banning cigarettes (and eagerly continuing  to collect taxes on them). The government requires printing disgusting graphic pictures on cigarette packaging, and it tries to prohibit tobacco products that taste like something other than tobacco. As tobacco companies try to get around these rules, scientists and advocates urge it to widen the bans, arguing that

If people are going to use tobacco, then it should taste like tobacco … It should be harsh smoke that they’re inhaling and should not be hidden in the flavours that are being added to the products.

The reasoning is an exact parallel of that which the federal government applies to prostitution. It is not very much of a stretch to imagine Peter Mackay thinking, if not saying, that if people are going to become prostitutes, they should feel like prostitutes; that it should be the fear and squalor that they’re feeling, which should not be hidden behind the comfort and safety of well-protected work environments.

Needless to say, tobacco policy does not raise quite the same sort of concerns as sex work policy does. Legally, there is a constitutional right to the security of the person, but no right to be free from disgust. At the level of morality, it is arguably less objectionable to “nudge” people through disgust than through fear. Yet the similarities between the two policies are remarkable. In both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

I’m not sure if there are other examples of laws that operate in this way in Canada. (One superficially similar case, Québec’s former rule prohibiting butter-coloured margarine, was obviously motivated not by moral concerns but by the pressure of the dairy lobby.) One example that does come to mind, however, is the laws requiring one or both of the parents of a minor to be notified before she can have an abortion, which exist in a number of States in the U.S. Again, the governments of these States seek to deter what they regard as a morally undesirable practice by exposing those about to engage in it to shame and possibly fear (as well as financial and other pressures).

I am inclined to think that this approach is wrong, whether in the case of sex work, abortion, or smoking. As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beast who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance  are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

These thoughts are somewhat tentative, and I would welcome correction and contradiction. If I am right however, this sort of manipulation by negative emotions in the service of majoritarian morality is wrong, and we should oppose it, regardless of whether it is applied to sex work, abortion access ― or cigarettes.

Just Ask?

DISCLAIMER: Judging by the amount of time it took me to write this post, it is likely to make no sense. But I’m too invested in it, at this point, to give up on it.

The constitutionality of Bill C-36, the federal government’s proposed anti-prostitution legislation, is in serious doubt, and there have been calls (predictably futile) for the government to refer the matter to the Supreme Court. The government’s failure to do so means, no doubt, that once the bill becomes law, it will be challenged, and the litigation is likely enough to end up at the Supreme Court anyway, in four or five years’ time. In the meantime, there will be uncertainty, and if the Supreme Court rules that C-36 is indeed unconstitutional, it will mean that sex workers will have been victimized (and their clients punished) on the basis of a law that had no business existing to begin with. So would referring Bill C-36 to the Supreme Court be the right thing to do?

This question naturally leads to a more general one. As Yves Faguy argues on Slaw,

where it’s obvious that a constitutional challenge will take place, it’s worth considering how Canadians could benefit from a more efficient and transparent mechanism for reviewing the constitutionality of our laws.

In some countries ― I’m thinking of France in particular ― such a mechanism is provided by empowering a group of members of legislature (in practice, of course, it is usually a group of opposition legislators) to initiate a constitutional reference, bypassing the government. So would setting up a procedure of this sort be a good idea? (I will put to one side, for the purposes of this post, the question of whether that would be constitutional. I might come back to it eventually.)

Mr. Faguy is wary of the reference process, suggesting it might produce “overly broad” rulings by the Supreme Court. That’s may well be so, although of course the Court can also produce such rulings in the course of ordinary litigation. But there are other reasons too why I think that, although perhaps a superficially attractive check on a majority’s power, such a procedure (call it the “opposition reference”, for lack of a better term), would not be a good addition to the Canadian constitutional process.

The case of Bill C-36 illustrates one such reason. At least if we assume that the constitutionality of the new prostitution provisions will be assessed in the same way as that of the old ones was in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101 ― that is to say, by focusing on facts about the dangers which the law created for sex workers ― a reference to the Supreme Court before these provisions take effect will have to be argued and decided on the basis of evidence that will largely consist of speculation. Although I have expressed my worries about the Supreme Court’s fact-heavy approach here, it is the one the Court prefers, and it is certainly an appropriate one in many cases. If given the power to initiate references, opposition politicians are unlikely to be very careful about distinguishing bills on the constitutionality of which the Supreme Court could rule without a full factual record (such as, say, the federal government’s erstwhile project for creating a national securities regulator) and those with which doing so would not be possible.

Indeed, the potential for misuse of the power to initiate references by opposition groups is another reason to doubt whether such a power would be a good idea. Of course, a government can also misuse this power, but cases where it has an incentive to do so ― probably, situations where it will legislate because it must and not because it wants to ― will probably not be very frequent. (The Same-Sex Marriage Reference is the one that comes to mind.) The opposition, by contrast, will often have an incentive to grandstand and/or to delay the passage of legislation, so it is more likely to initiate references abusively.

One way to minimize this problem is to require the Supreme Court to rule on an opposition reference within a short time. The French Conseil Constitutionnel has only 30 days to deliver its judgment on the constitutionality of a bill, for instance. But (again, quite apart from potential constitutional difficulties) this would risk seriously undermining the quality of the resulting decision-making, not to mention interfering with the Supreme Court’s other work. The Supreme Court might have to be a very different institution to handle opposition references effectively.

In short, giving the opposition power to initiate references to the Supreme Court would likely have negative institutional consequences and produce decisions of dubious quality. It might sound like a good idea to check the power of the government to ram through legislation, but it probably wouldn’t be.

Rights, Property… and Blogging

Because one blog is obviously not enough, I will now also be blogging for the CBA National Magazine. Initially at least, I will only be writing for them once a month. In any event, my main blogging focus will remain here, at Double Aspect. However, I am excited about this new venture and the possibility of reaching out to a somewhat different (and broader) audience that comes with it, not to mention what I hope will be additional publicity for this blog, so I’m grateful to the Magazine’s editor, Yves Faguy, for the kind invitation to contribute.

My first post there argues that Canadian constitutional law’s failure to protect property and economic rights, although motivated by a concern that these rights would be invoked in the interest of the well-off and to the detriment of the poor, ends up hurting the vulnerable and the marginalized members of society. I have already made this case here, when discussing the “victim surcharge” imposed on offenders in addition to their normal sentences, which is in effect a transfer of wealth from the poor to the better-off. I now take up this theme in discussing Bill C-36, the federal government’s response to the Supreme Court’s judgment in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101. The  Supreme Court’s persistent refusal to acknowledge that the liberty protected by section 7 of the Charter includes economic self-determination means that the discussion about the bill’s flaws and possible (although by no means certain) constitutionality essentially ignores the question of the sex workers’ right to earn their living as best they can. That is unfortunate:

A recognition of the sex workers’ right to earn a living in their own way would obviate the need for an uncertain balancing of the sex workers’ right to be safe and the government’s moral indignation at the idea of prostitution, to which the Bedford approach leaves the door open. It would, instead, put the spotlight on the real question that the government’s chosen path raises, which is whether this moral indignation is a good enough reason to prevent vulnerable individuals from making a living in what for some, and perhaps many, of them is the only way accessible to them.

It is not the rich, who seem to be doing just fine, thank you, who most need their property and economic rights protected. It is the poor.

One point I do not make in the National Magazine blog post but want to add here is that it would be a mistake to suppose that economic rights are generally secondary to civil and political rights as a matter of liberal political theory. The better view, I believe, is that defended by James Madison in an eloquent essay called “Property.” Madison argues that what we now call rights are a form of property, so that

a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. (Paragraph breaks removed)

The role of government, Madison says, is

 to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

A government is not just if suppresses speech or violates the rights of conscience. But nor is it just if

arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.

“[T]he rights of property and the property in rights” go together. They are both indispensable for human freedom and self-worth. The point that respect for the latter is connected to respect for the former might seem abstract or theoretical. But we can see that violations of one go hand in hand with violations of the other.