Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYThe purpose of this Act is to decriminalise prostitution (while not endorsing or morally sanctioningprostitution or its use) and to create a framework that:• safeguards the human rights of sex workers and protects them from exploitation;• promotes the welfare and occupational health and safety of sex workers;• is conducive to public health;• prohibits the use of prostitution in persons under 18 years of age;• implements certain other related reforms.Thus the New Zealand legislation is based on national objectives All New Zealand “territorial authorities”authorized to enact legislation pertaining to sex work must abide by the objectives laid out in thenational legislation. 18Because Canada cannot proceed this way, decriminalization would leave most regulation ofprostitution in the hands of provincial and municipal governments, in which case a patchwork ofprovincial schemes with varying standards and objectives is likely to develop. Indeed, such a situationhas developed in Australia. Australia has a similar federal structure to Canada, and there currentlyexists a patchwork of regulatory schemes across the territories regarding prostitution. Criminal lawin Australia is a territorial and not a federal power, so its federal structure does differ slightly fromCanada’s.Federal influence over the regulation of sex workThe federal government may attempt to influence regulation of prostitution by leaving some of theCriminal Code provisions in force, and carving out exceptions within the Criminal Code or throughfederal spending power, much like it does with gambling.Criminal code exceptionsOne scheme that the federal government could develop to maintain some control over prostitutionwould be to retain the current criminal provisions while creating some limited exceptions; prostitutionwould remain illegal with exceptions allowing the provinces to regulate certain aspects of thetrade. Thus the federal government could set the standard of regulation that a province would have tomeet for it to be able to regulate prostitution.This strategy of carving out limited Criminal Code exceptions is currently used to regulategambling. Under s. 207(1) of the Criminal Code, 19 lawful lottery schemes may be conducted by thegovernment of a province, or by a charitable or religious organization, or board of a fair or exhibitionin accordance with the terms of a licence. Section 207(2) gives the Lieutenant Governor in Councilthe authorization to issue licences in accordance with the Criminal Code.In principle, the strategy of transferring control to the provinces where they fulfil certain criteriashould enable the federal government to retain some control over regulation. However, this strategycan still result in inconsistent regulatory schemes in different provinces. For example, in the case ofgambling, carving out Criminal Code exceptions has meant a liberalization of gambling regulation anda gradual transition from criminal prohibition to legalization, but it has also resulted in regional variationsin the interpretation of the law. The Law Commission of Canada’s 2005 study, The Legalizationof Gambling in Canada, describes four models of regulation. 20 Gambling is either managed through aCrown Corporation, through a hybrid model where it is regulated in partnership with private companies,through a charitable organization under license, or through First Nations groups.18 Supra note 2. For example, ss.12 – 14: Territorial authority to make bylaws .19 Criminal Code at s.207.20 C.S. Campbell, T.F. Hartnagel & G.J. Smith, “The Legalization of Gambling in Canada” (6 July 2005), prepared for the LawCommission of Canada [Campbell].228
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformCanada’s use of the criminal law to regulate gambling has been criticized as an illegitimate meansto consolidate and legitimise a provincial government monopoly over gambling as a means to generaterevenue. 21 In addition, loose federal regulation and a desire to maximize profits has been criticized forcreating a massive expansion of gambling at a significant social cost. 22 In particular, the federal governmenthas ignored issues of gambling-related crime and gambling addictions, 23 and critics have arguedthat the federal government has done this deliberately as a way to abdicate responsibility for thesesocial concerns. 24Viewed sceptically, gambling legislation can be seen as an example of a permissive money-makingscheme, and its rationale differs from that of Parliament carving out exceptions for provinciallyregulatedprostitution. However, the potential for similar inconsistent provincial interpretations of thelaw and different policy development clearly exists in the context of prostitution.Parliament can only create exceptions within its criminal power where it is a bona fide use of thispower, and not a colourable attempt to encroach on provincial jurisdiction. For example, any standardsthat the federal government might set before it permits provinces to assume jurisdiction cannotintrude into the provinces’ power to regulate in the area of property and civil rights. Indeed, thefederal government’s control over gambling within the Criminal Code can be criticized as an improperuse of its jurisdiction over criminal law: it seems incongruous that the federal government seeks toregulate gambling through the Criminal Code, and yet promotes it as a revenue-generating instrument.Federal spending powerIn addition to creating exceptions within the Criminal Code, the federal government could alsoattempt to retain some control over how the provinces and municipalities regulate prostitutionthrough their use of the spending power. This power arises from s. 91(1)(a) of the Constitution Act,1867 which is the power to legislate in relation to the public debt and property. The federal governmentcan provide financial gifts to the provinces with conditions attached in order to encourage theprovinces to follow a certain course. Perhaps the best existing example is the health insurance programunder the Canada Health Act. While payments to the provinces are authorized by the Act, somepayments are subject to the fulfilment of certain criteria and conditions. In the context of prostitution,the federal government could use its spending power to encourage the provinces to enact legislationregulating this industry in a manner that is consistent with federal policy.21 Ibid. at 8.22 Ibid. at 27.23 Ibid. at 36-37.24 Ibid. at 91.229
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