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Ontario premier concerned about constitutionality of new prostitution law

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Ontario premier concerned about constitutionality of new prostitution law

Michelle Zilio**
12/07/2014, 8:20PM

Just one day after a new and controversial federal prostitution law came into effect, the premier of Ontario is calling on her attorney general to look at the "constitutional validity" of the law.

In a statement Sunday, Ontario Premier Kathleen Wynne said she is gravely concerned the new law will not protect sex workers or communities. Wynne has asked Attorney General Madeleine Meilleur to advise her on the options available to the province, should it be found that the legislation's constitutionality is in question.**

"We must enforce duly enacted legislation, but I believe that we must also take steps to satisfy ourselves that, in doing so, we are upholding the constitution and the Charter," read Wynne's statement.**

"I am not an expert, and I am not a lawyer, but as premier of this province, I am concerned that this legislation (now the law of the land) will not make sex workers safer."

Wynne's call for review comes after a Supreme Court of Canada decision in December 2013 that found Canada's prior prostitution laws were unconstitutional. The case, known as Canada v. Bedford (referring to dominatrix Terri-Jean Bedford), struck down the country's anti-prostitution laws in a unanimous decision, saying they placed sex workers at risk in a way that violated their Charter rights. The Court also gave Parliament one year to draft new legislation.

While the new law provides some legal immunity for sex workers and still allows for the sale of sex, it also criminalizes the purchase of sex. The new rules also prohibit advertising and other forms of communication related to the sale of sex.**

Critics say the law sees all sex workers as victims of violence, rather than understanding the reasons for violence and exploitation against sex workers.**

"Criminalizing people for having consensual adult sex, I think is a bit stupid," said former sex worker Valerie Scott, who was part of the team challenging the government's prostitution laws at the Supreme Court.**

Because the legislation, known as The Protection of Communities and Exploited Persons Act, passed through the federal government's democratic process, the attorney general of Ontario must enforce it. Wynne affirmed that Meilleur will enforce law, while reviewing its constitutional validity.**

McGill University law professor Angela Campbell said there is a good chance that a court would find that the new law is not constitutional.**

Wynne's comments come as more than 60 organizations, including the Canadian AIDS Society and John Howard Society, demand the new laws be scrapped. Now Magazine, an alternative publication in Toronto, has also said it will defy the new law, and continue to run advertisements by sex workers.**

"Advertising is how we support ourselves and how do the journalism that we do, and we just refuse to discriminate and stigmatize against one category of advertiser," said Alice Klein, CEO of Now Magazine.**

A spokesperson for Justice Minister Peter MacKay defended the new law.

"Police, communities, and women's groups have welcomed our approach. Canada is not alone in proposing laws that view prostitution as exploitation," Jennifer Gearey said in an email to The Canadian Press.

Supporters of the new rules say the law will help reduce demand for prostitution.**

"It also shifts the culture for future generations to one where girls and boys that women are to be valued and respected and to be treated equally. Not to be treated as sex object," said Megan Walker, of the London Abused Women's Centre.**

With files from CTV's Omar Sachedina
 

fuji

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Good news. Hopefully she does go after the whole law, and not only the communications and avails sections. Those are the sections that have been most criticized, example by the CDN Bar Assn, but obviously it is the criminalizing of purchase that concerns us clients.

She did say the whole law should be reviewed but it is possible that review would ditch the communications and avails sections while leaving the criminalization of purchase intact. Obviously we want it all gone. That MAY take legislation to achieve, though.
 

Olivia Gracexo

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Good news. Hopefully she does go after the whole law, and not only the communications and avails sections. Those are the sections that have been most criticized, example by the CDN Bar Assn, but obviously it is the criminalizing of purchase that concerns us clients.

She did say the whole law should be reviewed but it is possible that review would ditch the communications and avails sections while leaving the criminalization of purchase intact. Obviously we want it all gone. That MAY take legislation to achieve, though.
This is what I predicted would happen a few days ago but I would like to point out that she cannot change the law in any way; but she can guide how the Crown legally puts resources into prosecuting it,Provincially.Its pretty obvious that the criminalization of purchase will make it far more dangerous for sex workers not less so .
 

Goober Mcfly

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She can't enact legislation to combat the existing law, but she can refer it directly to the Ontario Court of Appeal, and if successful the Court could stay the law pending the Supreme Court's final determination.
 

mandrill

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She can't enact legislation to combat the existing law, but she can refer it directly to the Ontario Court of Appeal, and if successful the Court could stay the law pending the Supreme Court's final determination.
I'm not sure she can simply refer it to the ON C A.

She cannot actually refuse to enforce valid Federal legislation without causing a constitutional crisis within Canada of major proportions. It would be the equivalent of that stupid US "state's nullification" GoP anti Obama bullshit. But she can bugger around and get "legal opinions" etc etc etc and be half-assed in doing buggerall to enforce it while paying lip service to the "authority of the Federal government subject to the Constitution, etc etc etc." And you know that the Liberal govt's legal opinion is going to say that Harpo and Pee-Mac are unconstitutional Tory asswipes and the Tory law is garbage.

So basically, she's not going to enforce it. It makes the Tories look like shit and she helps Trudeau score points off Harpo's ass in the next federal election.

Aren't all you Right-wingers glad that Hudak didn't get in now? If there was a Tory provincial govt, the cops would be hunting down your whore-mongering asses as I speak.
 

vwdub

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I'm not sure she can simply refer it to the ON C A.

She cannot actually refuse to enforce valid Federal legislation without causing a constitutional crisis within Canada of major proportions. It would be the equivalent of that stupid US "state's nullification" GoP anti Obama bullshit. But she can bugger around and get "legal opinions" etc etc etc and be half-assed in doing buggerall to enforce it while paying lip service to the "authority of the Federal government subject to the Constitution, etc etc etc." And you know that the Liberal govt's legal opinion is going to say that Harpo and Pee-Mac are unconstitutional Tory asswipes and the Tory law is garbage.

So basically, she's not going to enforce it. It makes the Tories look like shit and she helps Trudeau score points off Harpo's ass in the next federal election.

Aren't all you Right-wingers glad that Hudak didn't get in now? If there was a Tory provincial govt, the cops would be hunting down your whore-mongering asses as I speak.
no they wouldn't. cops have better things to do with their time than go after a guy who pays a woman for sex, with that women being off in life and likely driving a fancier car than you and owning a nice condo all paid off downtown.

they will eventually, however, step up the pressure on busting providers that have under age girls or who force girls from other countries to work as sex slaves. That's already done, but there will now be more pressure applied.
 

squeezer

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Aren't all you Right-wingers glad that Hudak didn't get in now? If there was a Tory provincial govt, the cops would be hunting down your whore-mongering asses as I speak.
Exactly, this is exactly what would have happened.
 

mandrill

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constitutional crisis within Canada of major proportions just because of prostitution laws ?
The Feds and the provinces have to respect each other's valid legislation. Under the Constitution, each has certain areas within which it can legislate. The Feds have criminal law, banks, shipping, bankruptcy, foreign policy, etc. The provinces have commercial law within the provinces, family law, etc. Neither can infringe or in any way nullify proper legislation by the other. If so, Canada would dissolve into chaos and fall apart. So it's larger than just prostitution.
 

kevenj

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Ottawa has just announced $300 million investment in Pratt Whitney to make plane engines, creating jobs in Toronto. Also, to-day PM Harper announced in IBM Software Lab in Markham an investment of $1.5 billion in high tech initiatives. Both of these investments will benefit Ontario's economy and job creating. Premier Wynne's expression of concerns about the constitutionality of the new prostitution law is just what Ontario needs to help get Ottawa to pump investment $ into Ontario. The conservations of course are positioning for the 2015 federal election.

Premier Wynne of course cannot nullify federal criminal law but can inflict enough credibility damage to the federal conservatives by referring Bill c36 to the Ontario Court of Appeal for a ruling and if the ruling is not in favour of the constitutionality of Bill c36, Ontario can put enforcement of c36 on hold, until formal ruling by the SCC. If Ontario, as the biggest province in the country does this, other provinces may follow. Harper just might have to pump more investment $ into Ontario to keep Premier Wynne from rocking his puritan boat.
 

wilbur

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The Feds and the provinces have to respect each other's valid legislation. Under the Constitution, each has certain areas within which it can legislate. The Feds have criminal law, banks, shipping, bankruptcy, foreign policy, etc. The provinces have commercial law within the provinces, family law, etc. Neither can infringe or in any way nullify proper legislation by the other. If so, Canada would dissolve into chaos and fall apart. So it's larger than just prostitution.
The Provinces will never declare that they will refuse to enforce federal laws. Rather, they have discretion over which laws they should prioritize over others, considering available resources. So it may be that the Attorney General's office could decide that limited police and court resources are better spent on other issues for the betterment of society, rather than on C-36.

I think that this is what is going to play out. So if Harper/MacKay accuse Wynne of causing a constitutional crisis, she could simply say that the feds should back up their legislation with the necessary cash required to enforce and prosecute, if the Conservatives think that C-36 is so vital to society.
 

lomotil

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It would seem that places like York Region do not need Ottawa, or Queens Park to stamp out the sex trade. Were there is a will, there is a way. Toronto for the most part lacks the will. Bill C36 will make it difficult in Toronto for the police or politicians to ignore civilian complaints as much as they have in the past.
 

vwdub

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It would seem that places like York Region do not need Ottawa, or Queens Park to stamp out the sex trade. Were there is a will, there is a way. Toronto for the most part lacks the will. Bill C36 will make it difficult in Toronto for the police or politicians to ignore civilian complaints as much as they have in the past.
Not a sarcastic question at all - but do you have or know of a source for any sort of historical data on civilian complaints re: this industry that are not acted upon? Or is this a "known" issue broadly discussed in passing/commentary/blogs/media etc - I'd very much be interested to know about how high the level of civil complaints in Toronto are. Are we talking about neighbours of the apartments where some famous agencies are located, for example? Just what are you referring to specifically?
 

DigitallyYours

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Of course she has legal authority to do it, it's just unusual.

It's a bit awkward really. Usually, it's the government that is arguing that the law is legal, but other parties saying it's not. So, to save time, the government asks for a reference. Like in the BC polygamy reference, which was also a province referring a criminal law.

In this case however, it's the reverse. Should Meilleur say that the law may not be constitutional, do they argue against it at a reference vs. the federal AG? I think that would be unprecedented.
 
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