The federal government is “going to have to produce legislation” to “address the effects of prostitution” after the Supreme Court declared three key prostitution laws unconstitutional, Justice Minister Peter MacKay says.
In a decision handed down just before Christmas, the court found that the laws that prohibit keeping a brothel, living on the avails of prostitution and communicating in public for purposes of prostitution are overly broad and infringe on prostitutes' Charter rights by depriving them of security of the person.
Chief Justice Beverly McLachlin, writing on behalf of the court, said the three provisions in question make it difficult for prostitutes to take safety precautions in their work, such as hiring a bodyguard or other staff, or working in groups.
The court’s decision was set aside for one year so Parliament can decide how to respond: either change the current laws or set the issue aside.
MacKay’s comments suggest the federal government will proactively respond to the court’s decision because, as he told CTV’s Power Play on Tuesday, prostitution “is a very corrosive part of what’s happening in society, and the Supreme Court’s decision in the Bedford case will require legislation to fill the gap.”
“We’re going to have to produce legislation that will protect vulnerable women, that will address the concerns raised by the Supreme Court but will put in place laws that are designed very much to address the effects of prostitution, the exploitation that goes on and the vulnerability that many in society have as a result of johns and in fact pimps that prey on vulnerable women,” MacKay said.
MacKay did not give a timeline for when the government might unveil the legislation.
Hours after the Supreme Court decision came down, sex worker and activist Terri-Jean Bedford said the federal government must consider three factors as it mulls amendments to Canada’s prostitution laws.
"First of all, they have to take consenting adults into consideration. What we can and cannot do in the privacy of our home with another consenting adult for money or not," Bedford told CTV’s Question Period last month.
"Then they have to outline what a sex act is. And then draft laws that are fair and right, and that don't put people in harm's way, maim or kill them."
'Against the law' for judges to reduce victim fine surcharge
MacKay also spoke out against judges who are resisting the federal government’s mandatory victim fine surcharge, which goes to a fund to support victims of crime with counselling, lost wages or other expenses related to their “participation in the justice system.”
Ontario Court Justice Colin Westman has been an outspoken critic of the surcharge, and is among a group of judges that have used their discretion to either reduce the fine in some circumstances or allow for an extended repayment period.
The law requires that judges impose a 30 per cent surcharge on a fine, or a flat fee of between $100 and $200, upon conviction.
Westman told CTV Kitchener last month that although he believes victims need assistance, judges should not have to impose the fine on impoverished or mentally ill criminals.
“It’s unrealistic,” Westman told CTV last month. “So if it’s not unrealistic, aren’t you bringing disrespect on this court by imposing things that either aren’t going to be enforced or can’t be enforced?”
MacKay told Power Play that some estimates put the annual cost of crime at $100 billion, 80 per cent of which he said is borne by victims.
“It’s our intention to put victims at the centre of our justice system, where they should be,” MacKay said. “Respect for them, inclusion and greater participation, and a louder and more clarion voice, and that means compensation in some cases and restitution, which a victim fine surcharge is all about.”
MacKay said several provinces and territories offer offenders options, such as completing community service, in order to pay their debt. But he accused judges of failing to inquire about an offender’s ability to pay the fine before reducing it.
“They can give prolonged periods of time to make that restitution, to make that payment of $100 to $200, depending on the offence,” MacKay said. “But to flout the law, to give 50 years to pay off a $100 fine, or to make the nominal amount of $1 as compensation to victims, is quite frankly insulting and it is against the law to do so.”
