New prostitution laws unlikely to be challenged soon, legal experts say

Canada has new crimes on the books, thanks to the new prostitution legislation that took effect last weekend. But don't expect court challenges or big changes in enforcement any time soon.

Among the new offences in the Harper government's Protection of Communities and Exploited Persons Act is a prohibition against the advertisement of sexual services.

At the same time, though, individual sex workers won't be charged with advertising their services part of the government's rationale that the purchase of sex should be illegal but not its sale.

So on Thursday, Toronto's weekly Now magazine, which usually contains about 10 pages of small ads for sexual services in the back pages, published as usual.

On Dec. 7, Alice Klein, the editor and CEO of Now, issued a statement stating, "We believe that running ads placed by sex workers themselves is still legal, and we are transitioning our business to comply with this new regulation."

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Lawyer and Osgoode Hall law professor Alan Young represents Now on this issue and his opinion is that Now "can pretty much continue to do what they do" by running ads for independent sex workers.

However, he says, escort agencies and any business that hires sex workers probably cannot advertise under the new laws. A publisher running an ad from them may or may not get caught up in the new law, Young says.

Young was also the lawyer who, in 2013, took the case to the Supreme Court of Canada that resulted in the court overturning prostitution-related clauses in the Criminal Code, prompting the federal government to pass new legislation.

Until last week, prostitution was legal in Canada it was soliciting in public and livingoff the avails of prostitution that were offences.

But this new law, as Justice Minister Peter MacKay said in June when he introduced the bill, makes "prostitution illegal for the first time" in Canada.

While Young says that "it's really bizarre to say that a sex worker can advertise and then when someone answers that ad, they become a criminal," he doesn't expect the advertising provisions to be the focus of any new court challenge or of police enforcement.

Ontario premier questions new laws

Ontario Premier Kathleen Wynne has also weighed in on the new law, expressing "grave concern" that the changes won't protect sex workers or the community. She asked the province's attorney general to conduct a review.

University of Ottawa criminologist Michael Kempa says "it's very significant for a provincial premier to ask for a review of a piece of federal criminal law legislation."

The federal government is responsible for writing criminal laws, while provincial governments handle the administration of justice, which includes enforcing those laws.

If the Ontario review finds that the new laws may diminish the safety of sex workers and have little impact on community safety two issues that the Supreme Court cited in coming to its conclusions Kempa says the province may decide to direct policing resources elsewhere, since it wouldn't see the law as assisting justice and safety.

The Ontario attorney general's office said it can't estimate when the review will be completed.

Police discretion

Police have some discretion as to which laws they choose to enforce, and Kempa says that, because of the huge number of laws that exist, police are, by necessity, selective about which ones they give priority.

"That is based less on the content of the law and much more on their perception of what's best for community safety," he says.

So Kempa feels it could be anywhere from six months to three or four years before police practices regarding the new prostitution laws change.

Kempa's research indicates that police forces in North America and Western Europe tend not to see prostitution laws as important for community safety.

That shows in the prostitution-related crime stats, which have been very steady for 50 years, despite many changes in the laws.

He says police forces don't aggressively enforce those laws, but use them as a law of convenience, to move along troublesome people, for example.

And since charging johns, now law-breakers by definition, would clog up an already over-strained court system, Kempa, who is seeking a federal Liberal nomination in Scarborough, Ont., suggests that "prosecutors and the police will probably choose not to act on most of those new laws. They don't have the capacity."

Dilemma for law's opponents

All that leaves Young and other opponents of the new laws with a dilemma.

Although he says "this law may just self-implode on its own," Young says it would be sounder if provinces declare they aren't enforcing the law because, in their view, it violates certain constitutional rights.

That would still leave the law on the books. To get it to another Supreme Court challenge would take five to six years even if a charge were laid right away, Young estimates.

Without charges, there aren't many opportunities to challenge a law in court.

While noting that there are ways to fast-track a challenge, Young expresses uncertainty about taking that path.

"Sometimes you have to look at the law in action to see what the flaw is," and to gather the evidence for a court challenge, Young points out. That could take several years.

If police forces are reluctant to enforce the new laws, that may mean the main criticism of the new law that sex workers will be forced to ply their trade in unsafe venues may not happen.

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Still, you could get a handful of officers in certain jurisdictions who might aggressively enforce these laws, Kempa says, so sex workers and their johns are still taking a gamble.

For Young, however, he would like to see what he considers the constitutional deficiency of the law addressed in court, or the government to change it.

Until then, he fears that it could be enforced "at the discretion or whim of the police," something that can change at any time.