Sometimes legislating is hard. Heck, it may be one of the hardest jobs in the world. You’ve got the weight of the world on your shoulders; a thousand different voices, incoherently screaming at you. And you’ve got to synthesize the bric-à-brac, plus the prevailing legal opinions, and spit something out on the other end.
Which is why you can’t blame the Conservatives too much for their prostitution bill. It’s been called all sorts of mean things — moralistic electioneering, misogynistic paternalism, hamfisted pearl clutching — and those accusations may be partly true. But more than that, the bill, C-36, is simply headstrong law-crafting.
C-36 is the product of belief. It is the child of selective evidence-reading, and the result of a confirmation bias.
This week’s committee hearings are proof of that.
While the Tories should be lauded for inviting a host of diverse witnesses and not just sycophantic yes-men, the committee was still pretty lop-sided.
While the unholy union of the legal and sex work communities are in relative consensus on the fact that the Bedford ruling does not allow for the criminalization proposed by C-36, Conservative witnesses lined up to endorse the broad strokes of the bill.
On some panels, during committee hearings, every witness endorsed the so-called Nordic Model proposed in the bill. On others, there were just one or two nay-sayers.
Yet, nearly every lawyer decried the bill as unconstitutional. Every current sex worker, and every group that represents sex workers, blasted the bill as a death sentence.
Those who pumped the bill did so genuinely: they were former sex workers who faced horrific violence, or groups that helped women escape the confines of the industry.
While there were many barbs traded, there was no clear indication of which side was representative — are the ‘happy hookers’ right in saying that their job is one like any other, or are the abolitionists right in saying that the trade is plagued with violence and exploitation?
Both sides conceded: the two realities of sex work are not mutually exclusive. Where they disagreed was on the proportions: is the industry mostly compromised of survival sex workers with addiction issues and violent pimps, or is it mostly self-employed escorts?
And the Conservatives did try and chart a course to address both realities. Problem is, they listened to the abolitionists on what would be best for the legitimate sex workers, dispensing entirely with the advice of those currently in the trade.
They banned purchasing sex but left the workers decriminalized, yet slapped provisions that would make it illegal to negotiate the terms anywhere in public. They made it legal for a sex worker to advertise her own services, but made it illegal for someone to knowingly publish them. They made it legal to operate in the safety of your own home, but made it illegal to work in a commercial property.
To this end, the bill might be a net positive for sex workers — a marginal improvement over the horror that was the pre-Bedford laws. But marginal improvements aren’t good enough when you’re talking about the safety and human rights.
Maybe the bill’s selective reading of the facts is not surprising. The bill’s point-person, Manitoba MP Joy Smith, is an interesting enigma. She straddles the fence between arch-social conservative and poster child for the broader party’s criminal justice crusade. She’s been the champion of the government’s efforts to criminalize the hell out of human trafficking — passing two bills on the matter — but she also proposed a mandatory porn block. She synthesizes religiously-tinged principles, with an activist streak, and a will to actually deal with those involved on the front-lines of an issue. You can accuse Smith of many things — failing to see the forest for the trees, preferring anecdotal horror stories over solid facts, operating with a messiah complex — but you can’t accuse her of not being entirely genuine and well-intentioned.
And so the unfortunate result is that the majority of abolitionist witnesses before committee, whom Smith knows on a first name basis, informed the bill directly. That left little room for the organizations who actually represent current sex workers.
The lop-sided cherry picking even includes which examples the government drew on to craft the bill.
Sweden, of course, is a favourite case study for the abolitionists. New Zealand is the perfect model for the decriminalization crowd.
Both are imperfect — Sweden, because its utopic welfare society likely meant that most of its survival sex workers were non-citizens who simply chose to head elsewhere rather than face the country’s stringent laws; and New Zealand, because its lack of land borders meant that there was little risk of sex tourism.
Nevertheless, the wholehearted commitment to the Swedish mindset displays just how confident this government is in its choice.
Ditto, for its arrogant assertion that this bill is constitutional. Aspects of it, almost certainly, are not. Even the abolitionists agree that the provisions that criminalize the communicating of a sex service in public will unduly harm sex workers. Yet, it was a select few lawyers who defined the government’s position on the law, and they’ll be damned if they’re going to bend now.
Perhaps this is the problem with moralism. Language form the Tories’ witnesses show that while this bill may have one foot in evidence and facts, it has another stiffly planted in namby-pamby NIMBYism.
The abolitionists suggested that women were not selling sex, they were selling themselves; that sex workers were not having sex, they were being raped; that stopping these women was a quintessential step towards equality, and so on.
Meanwhile, opposition witnesses were actually undermined by the Conservatives.
“The Liberals and the NDP would make it easier for johns and pimps to operate openly in communities across Canada. That’s why they enlisted the support of both the Adult Entertainment Association of Canada and the sociologist-author of ‘Johns’ Voice’ to undermine the Protection of Communities and Exploited Persons Act (C-36),” reads a release from Stella Ambler, who was subbed into the committee to study the bill.
The representative from the Adult Entertainment Association, however, was mostly questioned by the Conservatives — who thanked him for his valuable insight — and didn’t get a single question from the Liberals.
Other quintessential voices like Alan Young, main counsel for the plaintiffs in the Bedford case, and a representative from Ipsos Reid, the polling firm conscripted by the government to poll attitudes on the issue, were submitted as possible witnesses by the Liberals, but did not make it to the final list.
That Ipsos poll, by the way, is still under lock-and-key somewhere in the government’s information vaults.
Only about half of the suggested witnesses from the Liberals, some of whom were supporters of the Nordic Model, made it before the committee.
In an alternate version of reality, there is likely some columnist explaining why the NDP’s bill to decriminalize sex work is the listed product of the Dipper’s sex worker friends. They would likely have a point. (Important to note that, in this alternative universe, the NDP have a spine and have taken a public stand on sex work.)
But the reality is, whoever does it, this bill will directly impact the lives of sex workers — both those who are vulnerable and those who feel no more victimized than Jane the steelworker or Jim the postman — and could be the difference between life and death for many, and the difference between jail time and financial ruin for others.
Myself, I’m pro-decriminalization. As both a civil libertarian and someone who has interviewed dozens of current and former sex workers on the matter, I’m convinced that removing criminal sanctions from the industry is a sure-fire way to protect our liberties and ensure sex workers are free from harm.
But, listening to the abolitionists, I concede that they have some pretty cogent points — like the fact, as pointed out by activist Timea Nagy, that many workers are immigrants who have been essentially tricked into the trade. (Myself and Nagy, by the way, had a bit of a misunderstanding, where she was under the assumption that I said that her voice wasn’t important after MP Robert Goguen flailed his way through an absurd question about her rape. That wasn’t my intention, and I apologized to her.)
But just because there are issues do not mean that the first solution proposed is the right one. There’s really no proof that adding new provisions to the Criminal Code will do much of anything to end violence in the sex trade or the still little-understood issue of human trafficking.
As such, we probably deserve a more thorough conversation in the legislative process than the shambolic process we’ve seen thus far.
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