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Sex trade bill unconstitutional: expert

The Peace Tower is seen on Parliament Hill in Ottawa on November 5, 2013.  - THE CANADIAN PRESS/Sean Kilpatrick
The Peace Tower is seen on Parliament Hill in Ottawa on November 5, 2013.
— image credit: THE CANADIAN PRESS/Sean Kilpatrick

By Mike Blanchfield, The Canadian Press

OTTAWA - One of the architects of Sweden's anti-prostitution strategy — a model the Conservatives are trying to emulate — says the government's proposed new law is likely unconstitutional.

A provision of the Tory bill which still criminalizes prostitutes in some circumstances is also a violation of Canada's Charter of Rights and Freedoms, as well as international human rights obligations, lawyer Gunilla Ekberg said Wednesday.

"I would argue that is unconstitutional because it targets those who are victims of first of all a human rights violation but also a crime," Ekberg told the House of Commons justice committee via video link from Denmark.

Ekberg is a Canadian citizen who was an adviser for the Swedish government in the 1990s when it crafted a law that makes it illegal to be a pimp or a john, but not a prostitute.

The Harper government has introduced a similar bill in response to last year's decision by the Supreme Court of Canada to strike down the country's prostitution law as unconstitutional. For the most part, the bill treats prostitutes as victims and shields them from criminal prosecution.

A portion of the bill, however, makes prostitution illegal if it is carried out in a public place where children could be.

Ekberg and numerous other witnesses at this week's lengthy hearings on the bill are urging the committee to amend that section in order to strengthen the legislation.

Otherwise, another Charter challenge before the Supreme Court appears inevitable.

Earlier, this week, Justice Minister Peter MacKay said he fully expects another challenge to the law, but he wouldn't say where it might be vulnerable.

Still, witness after witness — including Ekberg, sex workers, Manitoba's attorney general and a coalition of more than 200 legal experts — has zeroed in on the provision that still allows the police to arrest a prostitute under certain circumstances for communicating for the purpose of selling sex.

MacKay and Conservative MPs say they are proposing a made-in-Canada law that treats prostitutes as victims, and targets the demand for their services by making it illegal to pimp them out or purchase their services.

Vancouver lawyer Georgialee Lang, who represented the Evangelical Fellowship of Canada as an intervener before the Supreme Court in last year's challenge, came to the government's defence in her testimony Wednesday.

The legislation, she said, "speaks to the real issue, which is the exploitation of women and the commodification of the commercialization of women's bodies, which is just a frontal assault on human dignity and is a breach of human rights."

"There's no doubt" that the bill will face a constitutional challenge, but many legal experts believe Bill C-36 would survive one, she added.

The government's new approach draws from the apparent success in Sweden, or so-called "Nordic model," which many researchers — Ekberg among them — say has witnessed a decline in prostitution since it took that approach in the late 1990s.

However, as one of the people who helped Sweden craft that policy, Ekberg told MPs on the Justice committee that the Harper government's current policy direction comes up short against the Swedish model.

In fact, Ekberg said she finds the government's position "troubling" because there has been so much evidence to the contrary from academics, researchers, those being trafficked, and some provinces.

"Not only are they discriminatory but they are contrary to the human rights obligations that Canada has signed on to."

Ekberg also took aim at the long-term goal of the government with the bill: eliminating prostitution all together.

"In 16 years that we have been doing this (in Sweden), we will not be able to eliminate prostitution and trafficking completely."

Two other witnesses, sex worker Amy Lebovitch and former prostitute Valerie Scott, argued Wednesday that the bill ought to be scrapped in its entirety because prostitution should be completely legalized.

Along with retired dominatrix Terri-Jean Bedford, the two women were the principals in the case that succeeded last December before the Supreme Court.

"Bad laws serve us up on a silver platter to sexual predators," said Scott.

Anti-gay laws in places such as Uganda, Nigeria and Russia have led to increased violence against homosexuals, so it stands to reason, Scott argued, that anything short of outright legalization of prostitution would bring harm to prostitutes as well.

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