Normally you would be dead right. But the government has expressed their intention to make prostitution an illegal act, but with an immunity to prosecution for the sellors because they are a exploited group who need our help not punishment for their predicament. A very interesting approach.
Possible for C-36 to be immediatley S.C.C. CHALLENGED once Law.
- Thread starter Toronto`s Finest
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Let me get this straight then.
It is illegal for an SP to advertise and receive a material benefit, BUT she is immune from prosecution therefor per S. 286.5 (1). She's also immune from prosecution for aiding and abetting anyone committing an offence under C-36 per S. 286.5 (2).
I now acknowledge the distinction you made in your last sentence, but are you saying then that girls cannot challenge the Charter on the basis that their security is threatened because they are breaking the new law (by successfully advertising or collecting proceeds), regardless of their legislated immunity from it?
Correct. From the newly enacted legislation.
Immunity — material benefit and advertising
286.5 (1) No person shall be prosecuted for
(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or
(b) an offence under section 286.4 in relation to the advertisement of their own sexual services.
Immunity — aiding, abetting, etc.
(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.
If life means subsistence living at a minimum, then perhaps I'm wrong, but liberty entails more. I know we do not have 'the pursuit of happiness' in our Charter (so no enshrined happy endings I guess).
That being said, C-36 is overbroad and grossly disproportionate if it paints all SPs as victims.
Sure, if the minority population in question offers political equity.
This was debated months ago. Some pretend to think that prostitution is perfectly legal. My view is that C-36 makes the commerce of prostitution illegal. Not sure how you can have a legal transaction if one side of the trade is criminal. Different ways to skin a cat, dude.
Advertising and benefiting has nothing to do with aiding and abetting, or why they will be put at risk. You're commingling issues and arguments.
They can try to obtain leave to appeal anything they want. Maybe a brilliant advocate will come up with a mind-blowing argument. All I'm saying is that the facts, and the reasoning, in Bedford are quite different.
Is this meant to be a facetious remark?
You could be very well right here but purchasers of drugs are not breaking the law if they consume what they buy (possession is a separate law).
Okay, but I didn't say advertising and benefiting had anything to do with aiding and abetting, just recapping and responding to your statement that if an SP's livelihood entailed aiding and abetting buyers, that was immune too (ergo, an implication that she was also committing a crime as you said). [Edit: You also said that advertising & benefiting are NOT illegal, but they are illegal].
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True, there is whole range of actions that are included in violence. Murder is the most dramatic, but also the most marginal. The vast majority of workers are not murdered. You have to look at sociological studies, not police data, because a client being robbed or threatened or punched by a pimp or prostitute is not going to tell the police.
It is hard to compare, because illegal drugs are substances that needs to be imported or produced. Sex is a legal activity and supply is not limited by anything. If the drug was legal to possess but illegal to buy that would be even more difficult to enforce than prostitution I think (if the seller is legal, then I assume that possession is also legal in your scenario.)
In regards to Advertising, it should be a slam dunk.
Fundamental freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
As for the Client.....let's get use to saying client!
D) Freedom of association- just thinking, what if we become a member i.e. Jessica Lees VIP, as a member we pay a fee. This fee allows us one hour time slots. Just an example....
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Is our Liberty to choose a service which is freely offered and allowed being trampled by C36. The clients security based on entrapment, based on not being able to go to police if assaulted by a sex worker or her body guard not an infringement on our rights?
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Marginal note:Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
Treating men differently is discrimination in my opinion.
I'm not a lawyer and luckily for Harper, Mackay and Smith I'm not a judge and maybe I'm completely off on my understanding but I would think based on this it should be able to be challenged from a client's position as well.
http://laws-lois.justice.gc.ca/eng/const/page-15.html
Limitations on or banning of various types of advertising has been held as constitutional many times over.
With respect to s. 15 I am not sure which enumerated group you think this law discriminates against. It appears to be written as a gender neutral law.
1. No. Only if it is dangerous to other people. In most cases dangerous activities are simply regulated in a way that reduces danger to acceptable levels for society (driving, guns, etc).
2. Yes, I see the difference. But the premise of the new law is also based on the assumption that they have no choice. That is why they have immunity in the first place. This is where the law really flies apart, when they try to make it look like they are victims and criminals at the same time. The words of the law implies that they are still criminal, but the government has been very clear that they are considered to be victims and that this law aims to protect them. It's like the joke about the blond girl who puts coffee and ice cream in a thermos. You can't have both at the same time.
3. Every sex act is different, but trying to restrict which ones are allowed or not would be ludicrous. It's just micro-managing and has nothing to do with the fact of being more or less exploitive.
s. 7 is the only hope for a successful Charter challenge and I think it is a thin one.
With the government effectively making prostitution illegal, the entire legal analysis is shifted significantly.
With great respect these are all policy arguments, which appear to have already been lost. A law is not unconstitutional because its premises or factual assumptions are incorrect. The courts don't do down that road.
It's not really about whether the premise is true or false. It's about whether the law itself is in good alignment with this premise. If you say ''Prostitution is inherently degrading, the overwhelming majority of women do it against their will or have no choice'', then you cannot write a law that effectively treats them like criminals and puts them at greater risks of danger.
Wasn't it a Section 7 defense as before (security of the person)?
TeasePlease has alluded to shifting legal analysis before, but some parts haven't changed.
C36 does not allow public communication for even the SPs, so they can't properly screen or do so out of view which might expose them.
Exactly.
I think where everyone seems to be getting confused is thinking it is LEGAL for the provider.
It is not LEGAL.
They have declared prostitution illegal.
Immunity from prosecution from that illegal act is granted to anyone providing their own sexual services.
It is a weird reversed way of looking at it.
But, indeed as you say rld, Parliament adopted a policy and has passed a law that made prostitution illegal. That is a pretty cut and dried policy decision that governments are elected to enact. Courts seldom interfere with such policy.
It will be an uphill battle but I suspect after a year or so of some showboating, that enforcement will wane and the industry will adapt to the new reality.
If you want to get philosophical about it, it depends on what your definition or legal/illegal/lawful/unlawful is. If you can never face sanctions because of an action, then isn't that a legal activity?
The government is trying to slice and dice the definition with semantics, but at the end of the day, I suspect the courts will interpret 286.2/4 in conjunction with 286.5. You really have to since 286.5 mentions 286.2/4. 286.2/4 cannot be interpreted in a vacuum.
The bottom line is that if this legislation results in harm coming to sex workers in a real way, the courts will find the arguments it wants and strike it down. And if it actually turns out that it helps sex workers, the court will let it stand. I don't think this is something that will be won/lost on abstract theoretical arguments.
IMO, the ad ban is as good as gone.
The government is trying to slice and dice the definition with semantics, but at the end of the day, I suspect the courts will interpret 286.2/4 in conjunction with 286.5. You really have to since 286.5 mentions 286.2/4. 286.2/4 cannot be interpreted in a vacuum.
The bottom line is that if this legislation results in harm coming to sex workers in a real way, the courts will find the arguments it wants and strike it down. And if it actually turns out that it helps sex workers, the court will let it stand. I don't think this is something that will be won/lost on abstract theoretical arguments.
IMO, the ad ban is as good as gone.
I am still confused.
"That illegal act" you refer to is advertising, benefiting, communicating and buying, but not selling. Prostitutes are immune from prosecution for advertising and benefiting, as well as aiding and abetting from the offering or selling aspect.
One can say that these prohibitions together mean that prostitution is effectively illegal in Canada, but a constitutional question would involve a closer examination, of the statute in detail and how it affects each individual right.
Bottom line, if the law affects the livelihood of a prostitute to her extreme detriment, when there is absolutely no evidence of harm to society or to others, how is it constitutionally sound?
