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

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