THE HILL TIMES: Fedsâ?? anti-prostitution legislation â??destinedâ?? for a legal challenge,

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A repost on Sean Casey (the Liberal MP)'s website of an article published on Monday by the Hills Times, which was only available through subscription:

THE HILL TIMES: Fedsâ?? anti-prostitution legislation â??destinedâ?? for a legal challenge, could take years

POSTED ON SEPTEMBER 29, 2014
By Rachel Aiello
Published September 29th, 2014

[URL="http://seancasey.liberal.ca/communications/sean-in-the-news/hill-times-feds-antiprostitution-legislation-destined-legal-challenge-years/"]http://seancasey.liberal.ca/communications/sean-in-the-news/hill-times-feds-antiprostitution-legislation-destined-legal-challenge-years/[/URL]

The longer would-be challengers of the Conservativesâ?? controversial anti-prostitution legislation, Bill C-36, wait to go to court following its implementation, the better chance the case will have at succeeding, legal experts say, agreeing that a challenge is forthcoming.

â??Itâ??s quite possible that the very first guy arrested under the purchase or pimping law will decide to launch a constitutional challenge. They could absolutely do that and it could happen two weeks after the law is passed,â? said Janine Benedet, associate law professor at the University of British Columbia, who testified at both the House and Senate committee hearings this summer, and represented the Womenâ??s Coalition for the Abolition of Prostitution at the Ontario Court of Appeal stage, and is generally in support of the bill.

A new challenge would have to focus on the life and times of purchasers, whereas the Bedford case was all about the life and times of sex workers, said Alan Young, lead counsel in Canada vs. Bedford and an associate professor at York Universityâ??s Osgoode Hall Law School.

Prof. Young said he hasnâ??t decided yet whether it is best to put this legislation â??out of its misery quicklyâ? so that a â??constitutionally soundâ? piece of legislation could be introduced, or to bide time â??because we donâ??t want to have a premature challenge that will be unsuccessful, preventing other people from raising claims for another two decades.â?

Carissima Mathen, an associate professor of law at the University of Ottawa and a constitutional and criminal law expert, said the bill asymmetrically criminalizes one side of a transaction that requires two people.

â??It is a very unusual piece of legislation that is trying to respond to the Supreme Court of Canadaâ??s decision on Bedford but it also in a way is trying to change the terms of the debate,â? she said.

Bill C-36, the Protection of Communities and Exploited Persons Act, or â??An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts,â? was introduced by Justice Minister Peter MacKay (Central Nova, N.S.) and first read in the House on June 4. There were special committee hearings this summer, and the Senateâ??s Legal and Constitutional Affairs Committee came back early to host pre-study hearings, working to have the new law in place before the existing legislation expires Dec. 20. The bill is awaiting final approval in the House and could be sent to the Senate this week.

The bill would amend the Criminal Code to prohibit purchasing sexual services or communicating in any place for that purpose, and prohibit benefiting from the sale of a sexual service. The only substantive amendment made following the House hearings was to define the public places where people under the age of 18 could be as being open to public view, next to a school, playground or daycare.

There are no definite plans to challenge it yet but Prof. Young told The Hill Times there are a lot of people interested.

Caroline Newcastle, a sex worker and spokesperson for Prostitutes of Ottawa-Gatineau Work, Educate and Resist (POWER), also said she has not heard of any explicit plans to form a challenge, but said it is inevitable as this bill reproduces many of the dangers struck down in Bedford.

â??Some of us will die as a result of this legislation,â? she said, adding that the bill impacts sex workersâ?? ability to safely screen clients and makes them more vulnerable without the ability to legally hire protection. She also said prohibiting them from being able to advertise their services explicitly will affect their ability to communicate the line of consent.

â??I expect that by 2015 a legal challenge will have been commenced and if a legal challenge isnâ??t commenced, it will be not long after that,â? said Liberal Justice critic Sean Casey (Charlottetown, P.E.I.).

Independant Newfoundland Liberal Senator George Baker, a member of the Senate Legal and Constitutional Affairs Committee set to study the bill, agreed.

â??It seems destined for a constitutional challenge,â? he said in an interview with The Hill Times.

The committee still plans to hold more hearings, he said, but they â??might not be very extensive,â? before Bill C-36 is passed in its current form. He said he doesnâ??t think it is possible to amend the legislation enough to make it acceptable constitutionally.

â??Listening to Parliament [say] that youâ??re going to make a provision for a prostitute to carry on her activity or his activity of prostitutionâ?¦while at the same time you make a declaration that the act of prostitution is illegal for the first time in Canadian history-a reasonable person would say that is completely contradictory. Why doesnâ??t Parliament just make up its mind? If theyâ??re going to make it illegal, make it illegal; if theyâ??re going to make it legal, make it legal. Itâ??s a very complicated piece of legislation,â? he said.

NDP MP Françoise Boivin (Gatineau, Que.), her partyâ??s justice critic and outspoken opponent of the legislation, said it would be important to watch and learn from the provinces how the courts interpret and the police forces implement the legislation after itâ??s passed because itâ??s ultimately their jurisdiction to administer.

She said it would be interesting to approach groups impacted by the new laws after the next federal election, scheduled for Oct. 19, 2015, to see â??how it was lived.â?

The bill was debated in the House on Sept. 22 after the House Justice Committeeâ??s report was presented in the House a week before.

Prior to the debate, the Speaker read out the notice of motions made. There were 52, all from Green Party Leader Elizabeth May (Saanich-Gulf Islands, B.C), who had placed the motions in an attempt to delete the bill in its entirety. Like both Mr. Casey and Ms. Boivin, she said it was beyond amending and destined for a constitutional challenge.

Legal experts said a new court challenge could take anywhere between two and 10 years, with it most likely to take three to five years to make its way through the courts and appeal process. Itâ??s thought that any new challenge will be slightly shorter than the six years it took for Bedford from filing to completion, because the comprehensive information and evidence compiled in that case will still be applicable for reference in a new challenge.

There are two options for a court challenge: either a criminal case or a civil proceeding like Bedford.

Prof. Young, associate professor at York Universityâ??s Osgoode Hall Law School, said it isnâ??t clear yet what the exact nature of the challenge will be, or which area of the legislation it would focus on, but a criminal challenge would be the form more likely to come first.

All experts agreed that although the existing thousands of pages of evidence will help form a case, if they were to be the constitutional litigator, theyâ??d like the time to gather new evidence to demonstrate how the new law is impacting sex workers and purchasers and to make realistic conclusions.

By the time Bedford was being argued in the Ontario Court of Appeal in 2011, there was plenty of new and interesting evidence both in Canada and internationally that couldnâ??t be referred to because the 88 volumes of evidence collected for the case was compiled in 2005, said Prof. Benedet.

The big question now is how long it will take to build up the evidence that the claimants feel is sufficient to be successful, because as Mr. Baker pointed out, civil challenges, if lost, can be very expensive.

Prof. Young said that he has had conversations with the three Bedford plaintiffs-Amy Lebovitch, Terri-Jean Bedford and Valerie Scott-and other sex workers involved in the case, but he hasnâ??t made any concrete plans to represent a case again.

â??Weâ??ve reached a situation where everybody is knocking on the door thinking, â??I should be the next one to do this,â?? and thatâ??s good but itâ??s also bad if itâ??s done precipitously,â? he said.

It is possible that having multiple challenges across provinces could compel the federal government to send a reference to the Supreme Court, which is the second option available, and discussed by all the legal experts and opposition parties The Hill Times spoke with.

A federal or provincial government could send a reference to the Supreme Court of Canada or a provincial Superior Court or Queenâ??s Bench, in which they could pose a question or questions to the court about the constitutionality of various points of the bill and allow the court to declare its constitutionality. This reference could be initiated at any time, when the law is at any stage of the lawmaking process. If they deemed the bill, or portions of it, unconstitutional, it would give Parliament another opportunity to come up with a piece of legislation that conforms with the Charter.

Itâ??s an option that could move very quickly, as seen with the government asking the Supreme Court to determine whether C-7, the bill to allow for Senate term limits, was constitutional. But the current government has made it clear it isnâ??t interested in pursuing that option, so the earliest a reference could come up would be after the October 2015 election. Itâ??s something the Justice critics have alluded to.

â??I think that any responsible government now or after 2015 should save all of the parties the time and expenses associated with a challenge to this legislation and refer it to the Supreme Court,â? said Mr. Casey.

Legal experts, though, are hesitant to declare this the best option. While it does have value in potentially expediting a process if the Supreme Court invalidates or modifies the legislation, preventing Charter rights being broken in the meantime, references are done on argument as opposed to on legislative fact evidence, which could result in a decontextualized decision, baring little weight over the initial question sought to be answered, said Prof. Young.

â??I do believe the flaws in the law, some are apparent on the face of the statutes and some will only emerge with time as we see how the law is being applied and implemented in communities.â?

Prof. Benedet said that the government has to have the time to enact the social supports and programs that coincide with the bill, like the $20-million over five years the Conservatives have pledged to aid with sex workersâ?? exit strategies from the industry, to evaluate the overall effectiveness.

â??The law alone is not going to make it effective. You need programs that are both deterring entry into prostitution and programs on the other end that are providing women with viable alternatives for a source of income,â? she said.

The piece was originally published here: [URL="http://www.hilltimes.com/news/news/2014/09/29/feds-anti-prostitution-legislation-destined-for-a-legal-challenge-could-take-years/39745"]http://www.hilltimes.com/news/news/2014/09/29/feds-anti-prostitution-legislation-destined-for-a-legal-challenge-could-take-years/39745[/URL]