Legalized Prostitution

[The Bread Guy]

I've read over the new bill and IMHO it's a dog's breakfast that does nothing to resolve the SCC's concerns with the old legislation but just layers on a whole new grab bag of confusing and even more restrictive concepts. I thought this bull**** would stop once Toews was gone. I was obviously wrong.

When you put it that way, in addition to the "red meat" argument, could it also be one of these to The Supremes?

It seems to me that the new law ignores the Supremes' direction at point 4 and will be struck down again.

Trickier question - if this is, indeed, the case, how many public servants/DOJ legal beagles said, "you know, this doesn't answer the SCOC's concerns", and who finally said, "thanks for your advice, and here's the final edits going to the politicians"?

 

[FJAG]

As I recall, the Federal Government can petition the Supreme Court directly to provide guidance on proposed legislation (IE like they did with the Clarity act, and more recently asking their opinion about making changes to the Senate).  However I doubt they will be very inclined to get the court's blessing on this legislation, and will instead pass it into law, and let the challengers have it, since by then it will be someone else's problem to deal with.

The Governor in Council (i.e. cabinet) may make a reference to the SCC regarding the interpretation or constitutionality of any federal or provincial legislation under s 53 of the Supreme Court Act.

Under s 54 the House of Commons or the Senate may ask the SCC for a review of any "Private" members bill.

I agree that cabinet will not apply under s 53 although, with any bill drafting process there is an internal review within DoJ to test a bill for constitutional compliance. It's not unusual for there to be differing opinions as to the constitutionality of any particular provision and I don't doubt that on occasion a Minister will float a bill that may not have unanimous acceptance--after all this is the place where bureaucracy and politics meet at the coal face--its very much a matter of risk tolerance and political perception.

As a conservative supporter (mostly based on fiscal issues) I have found myself much troubled by my own government's draconian approach of using harsh criminal sanctions to solve complex issues (both social and otherwise and frequently only an issue in the eyes of small vocal groups).

I give this bill a big fail. I agree that they won't send it to the SCC for a constitutional review.

:cheers:

 

[Privateer]

When The Supremes ask for this sort of thing, does it have to go all the way back up through the lower courts via challenges?  Or do they "check things over" after legislation is developed in response to a "Ottawa, change the law" ruling.

The mechanism does exist, federally and provincially.  Federally, it is in Supreme Court Act, which provides the executive (Governor in Council) with the ability to refer questions to the Supreme Court of Canada:

53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning

    (a) the interpretation of the Constitution Acts;

    (b) the constitutionality or interpretation of any federal or provincial legislation;

    (c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or

    (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised

Other questions

(2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

Questions deemed important

(3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

Opinion of Court

(4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons.

The Minister of Justice is supposed to consider the issue before a bill is put before Parliament:

The Department of Justice Act provides:

4.1 (1) Subject to subsection (2), the Minister [of Justice] shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.

and the Canadian Bill of Rights (yes it still exists!) provides:

3. (1) Subject to subsection (2), the Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

But having seen the law and order bills coming out of this government, I wonder how seriously the Ministers of Justice have performed their duty...

I also agree that the government is likely disinclined to seek a preliminary review of the new prostitution bill because they know it has problems, constitutionally. 

Absent a reference, the matter will only come before a court when the law is enforced against someone.  When a person is charged with an offence, the person can defend the charge on the basis that the law is unconstitutional.  That will happen at a trial court, and so you then begin the process of a trial level decision, an appeal within the provincial court system, and then an appeal to the Supreme Court of Canada.

 

[FJAG]

When you put it that way, in addition to the "red meat" argument, could it also be one of these to The Supremes?

Trickier question - if this is, indeed, the case, how many public servants/DOJ legal beagles said, "you know, this doesn't answer the SCOC's concerns", and who finally said, "thanks for your advice, and here's the final edits going to the politicians"?

Love seeing Calvin.

I think what we have in this legislation is twofold.

First its an attempt to see how little amendment to the old law they can get away with. Their hope is that it might pass muster because there isn't much political value in being shot down by the SCC again. I think that there is a continuing presbyterianish attitude to prostitution that ignores the fact that this has been the oldest profession in the world for a fundamental reason.

I'm a firm believer in the old Albert Einstein quote that "insanity is doing the same thing over and over again and expecting different results." Making prostitution illegal as an attempt at social engineering it out of existence has failed over and over again. So will this.

Secondly, I expect that there was a grab bag of "issues" floating around (vocal interest groups including the police and within DoJ) waiting for an appropriate time to be thrown into the criminal code. As an example the amendment of the definition of "weapon" to include anything used, designed to be used or intended to be used to bind or tie up a person against their will had nothing whatsoever to do with the previous SCC case. Someone somewhere deep in the bowels of the bureaucracy had to have said "Damn. We need that one to make the country safer. Here's our chance to sneak it in." :not-again:

:cheers:

 

[dapaterson]

On the plus side, they are not trying to criminalize bondage with consent. 

 

[The_Falcon]

How about ads for "lonely?  looking for some company?" services?  "I'm advertising introduction and dating services, Your Honour - I have no control what consenting adults do once they're introduced."

I agree the wording seems overly broad and subject to wide interpretation.  There are plenty of legitimate sites were people are basically saying they just want to hook up, have a "casual" or "no strings attached/NSA".  In fact the latter is often used on the Plenty of Fish dating site. Then there is Canada's home grown, Toronto based "Ashley Madison" which is basically for people who want to have affairs. Can't forget the "Sugar Daddy" websites either.

 

[The Bread Guy]

I agree the wording seems overly broad and subject to wide interpretation.  There are plenty of legitmate sites were people basically saying they just want to hook up, have a "casual" or "no strings attached/NSA".  In fact the latter is often used on the Plenty of Fish dating site. Then there is Canada's home grown, Toronto Based "Ashley Madison" which is basically for people who want to have affairs. Can't forget the "Sugar Daddy" websites either.

Good point - lots of grey areas there.  The lawyers'll love wading through those thickets  ;D

 

[Retired AF Guy]

You're mostly correct.

The new bill is law that requires enforcement once passed by the legislature and given royal assent.

That's if it actually makes it through all the process' required. According to my copy of The Canadian Regime, the stages the bill must go through are as follows:

- First reading, which introduces the bill to Parliament;

- Second reading, which focuses on the bills basic principles;

- It then goes to committee for in-depth study;

- The committee than makes a report, which, among other things may include any suggestions for amendments;

- Then the bill goes to third reading;

- If it passes third reading, it then goes to the Senate where the whole process is repeated; and,

- Once, (If?) the Senate gives it its blessing, it is then given "royal assent" and becomes law.

Considering that Parliament, in the very near future, will be closing up shop for summer recess, that means the bill won't get debated until the fall.

Which brings up a question; The Supremes gave the government a year to do something. Does the tabling of this bill fulfill the SCC requirement or does the bill actually have to be passed and given royal assent within that year??

 

[FJAG]

That's if it actually makes it through all the process' required. According to my copy of The Canadian Regime, the stages the bill must go through are as follows:

- First reading, which introduces the bill to Parliament;

- Second reading, which focuses on the bills basic principles;

- It then goes to committee for in-depth study;

- The committee than makes a report, which, among other things may include any suggestions for amendments;

- Then the bill goes to third reading;

- If it passes third reading, it then goes to the Senate where the whole process is repeated; and,

- Once, (If?) the Senate gives it its blessing, it is then given "royal assent" and becomes law.

Considering that Parliament, in the very near future, will be closing up shop for summer recess, that means the bill won't get debated until the fall.

Which brings up a question; The Supremes gave the government a year to do something. Does the tabling of this bill fulfill the SCC requirement or does the bill actually have to be passed and given royal assent within that year??

The SCC declared several provisions of the "prostitution" laws constitutionally invalid on June 13th 2013 and then "suspended the invalidity" for one year. Effectively on June 13th 2014 the invalidity is in effect.

Tabling the bill does not change the law. The new law does not take effect until it has received royal assent and is put into force (which is either on royal assent or some later date specified in the legislation)

op:

 

[dimsum]

I agree the wording seems overly broad and subject to wide interpretation.  There are plenty of legitimate sites were people are basically saying they just want to hook up, have a "casual" or "no strings attached/NSA".  In fact the latter is often used on the Plenty of Fish dating site. Then there is Canada's home grown, Toronto based "Ashley Madison" which is basically for people who want to have affairs. Can't forget the "Sugar Daddy" websites either.

You seem to know much about these things.

op:

 

[The Bread Guy]

The SCC declared several provisions of the "prostitution" laws constitutionally invalid on June 13th 2013 and then "suspended the invalidity" for one year. Effectively on June 13th 2014 the invalidity is in effect.

Tabling the bill does not change the law. The new law does not take effect until it has received royal assent and is put into force (which is either on royal assent or some later date specified in the legislation)

op:

Do I read this correctly to mean that as of next Friday (13 Jun 14), Canada will have no laws on prostitution in effect?

 

[Journeyman]

Do I read this correctly to mean that as of next Friday (13 Jun 14), Canada will have no laws on prostitution in effect?

Friday the 13th you say.....    ;D

 

[The_Falcon]

You seem to know much about these things.

op:

I am single and I work overseas on a military base. 

 

[Rocky Mountains]

On the day the prostitution law ends, it would be nice if a group of prostitutes started soliciting in front of the Supreme Court on a daily basis.  I couldn't care less about the moral aspect of prostitution but society should be able to defend itself from the nuisance factor. 

 

[Edward Campbell]

There are all sorts of nuisances out there there ... I, for example, regard the blue-stocking folks who picket outside an abortion clinic on a downtown street as a nuisance, but I do not propose legislation to (further) restrict them. Our streets, here in the city in which I live, are, broadly and generally safe ... except at 0200 Hrs when gangs of rowdy young men (mostly men) are decanted our onto the streets and pose both a nuisance and a hazard ... should we bring back prohibition? Many of the homeless people on our city streets are mentally ill, many are a real, visible, public nuisance ... shall we round them up and lock them up? Some street prostitutes are, indeed, a nuisance, but they are just one of many.

Many countries manage to have legal, regulated, open, prostitution - Netherlands, Hong Kong and Singapore, in all of which I have lived/worked come to mind. They seem able to manage the nuisance factor.

 

[PMedMoe]

One has to wonder where you're hanging out that prostitutes are such a nuisance... 

 

[FJAG]

Do I read this correctly to mean that as of next Friday (13 Jun 14), Canada will have no laws on prostitution in effect?

First of all let me apologize. When I reviewed the decision I mistook the filing date for the judgement date.  In fact the decision was rendered on December 20th, 2013 which means that the period of suspended invalidity continues until December 20th , 2014. NOT June 13th.

As to the other part of your question. - The SCC only dealt with three specific provisions of the CCC: s 210 keeping common bawdy house, s 212(1)(j) living off the prevails of prostitution, and 213(1)(c) communication for the purpose of prostitution in public.

There are numerous other provisions in ss 212 and 213 which deal with prostitution that were untouched by the decision.

Definitely do NOT rush out on Saturday to set up a bawdy house or become a pimp or chat up a prostitute for her price list. All the provisions of the old legislation remain in full force and effect.

:cheers:

 

[The Bread Guy]

Definitely do NOT rush out on Saturday to set up a bawdy house or become a pimp or chat up a prostitute for her price list. All the provisions of the old legislation remain in full force and effect.

Thank you, counsellor, for stopping THAT stampede  ;D

 

[Rocky Mountains]

One has to wonder where you're hanging out that prostitutes are such a nuisance... 

Las Vegas

 

[Nemo888]

Can't the new law be taken down for the same reason the old one was? If you are buying a legal service but cannot do so safely isn't that also a charter violation? It looks to me like prostitutes can now abuse their clients much easier.

Isn't legalization and regulation the best solution? Tax it, cut down on disease transmission and get the under aged ones off the street. Make them licensed professionals. This law sucks and not in the good way. Canada never finds smart creative solutions anymore.