Peter MacKay's justice roundtables didn't set a place for sex workers

Over the past month, Justice Minister Peter MacKay has been not-so-quietly crisscrossing the country, holding closed-door confabs with what his department describes as "criminal justice system stakeholders."

Although those meetings have taken place in camera, which puts the details of the discussion firmly off the record, it's clear from the accompanying press releases that one of the key items on the agenda has been C-36, MacKay's legislative bid to rewrite Canada's prostitution laws in the wake of last year's Supreme Court decision.

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In an email to CBC News, MacKay spokeswoman Clarissa Lamb declined to release any additional information on who has been bending MacKay's ear over the course of his cross-Canada consultations on C-36 and other "justice-related issues."

Despite repeated requests, she refused to provide a list of attendees, but would say only that the minister "has met with a variety of individuals across many different sectors on justice issues of concern to Canadians across the country." 

"One central theme was clear throughout," she added. "That Canadians want safe communities in which to live and raise their families."

That's not surprising, really, as from what we can glean about the invite list from other sources, it appears to have included some of the most vocal advocates of the proposed prostitution bill, otherwise known as the protection of communities and exploited persons act.

Several of those participants also spoke passionately in support of the bill when it went before the House justice committee earlier this summer.

One subset of stakeholders that doesn't seem to have been given a seat at the minister's roundtable, however, are the current and former sex workers who fear those new laws will have precisely the opposite effect on their community. 

MacKay 'missing out,' says activist

Kerry Porth, a former sex worker turned activist for sex workers' rights and who appeared before the House Justice committee earlier this summer, is one of many critics of the bill who wasn't on the guest list for MacKay's invite-only sessions.

"He's missing out on what this government has been missing out on from the beginning of this — from the beginning of Bedford v. Canada," she told CBC News, referring to the case that led to the Supreme Court striking down the current laws and giving Ottawa one year to draft replacement legislation.

"That case presents 25,000 pages of expert testimony, which the minister says he's read, but I sincerely doubt it," said Porth.

"I don't think you could read the social science evidence, and hear what sex workers are saying about how to keep themselves safe, and the fact that they want decriminalization, and think that C-36 responds in any way to any of that."

The Toronto lawyer who spearheaded the Bedford challenge told CBC News that excluding certain interests from the discussion "sounds pretty typical of this government."

"Like-minded people stick together, so the abolitionists speak to the abolitionists, and the legalization people speak to themselves, and the two camps don't meet because they don't like to hear what each other has to say," noted Alan Young.

"This government is doing the same thing right now  —  speaking only to people who have a consistent perspective with their own. It's really just a process of confirmation of what you've chosen to do, and avoiding the contrary voices, so you don't question what you're doing. It's pretty obvious there's a small group of people who have been able to influence the government, and they're taking that to the bank."

Few legal implications to failure to consult

Still, he said, there are few legal implications to the government's approach.

"When there's an undertaking to consult, that may trigger some legal requirements, and some ramifications in terms of remedy, but for the most part, government can pretty much do what it wants," Young told CBC News.  

Even so, he said failure to consult could still come up as an issue if the legislation sparks another legal challenge.  

"One of the issues that will happen under the arbitrariness analysis of the charter is if they had a reasonable basis for believing their legislation is effective — and it's possible the failure to consult with certain groups could undercut that," he said.

But while that may "reflect badly on the government of the day," Young doesn't see it becoming "the hallmark of constitutionality deficiency" if MacKay's revamped laws end up back in court.  

And, in theory, opponents of the bill will get one more chance to share their concerns before C-36 becomes the law of the land.

Senate to study bill next month

Next month, the Senate legal and constitutional affairs committee is slated to begin a pre-study of C-36, which will include at least three days of testimony, and although the witness list has not yet been released, it's unlikely those hearings will be as extensive and wide-ranging as the House committee hearings were.

Traditionally, senators focus on fixing technical errors, translation mistakes and other minor problems not spotted by their Commons colleagues. It's rare that they make major changes to the substance of a bill.

Porth, who testified before the Commons committee alongside Vancouver lawyer Elin Sigurdson, says she has no plans to make a return trip to Ottawa this fall.  

"We did a ton of mobilization around the [House] justice committee hearings, which were, to put it mildly, were a gong show … an  incredibly unseemly experience for every current or former sex worker who appeared at that committee to speak against the bill," Porth recalls.

"After having appeared at the justice committee, and being given 10 minutes — actually, five minutes and 30 seconds — to speak, and then ignored for an hour and a half, I have no real interest in going through that experience again."

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"Everybody who put their name forward to testify at the justice committee has put their name forward to testify at the Senate committee, and those who do get invited to participate … will do so, so we can say we have participated in the process," Porth notes.

"But we're not expecting any changes … to the bill."

Bill's opponents have to be patient, Bedford lawyer says

That doesn't mean opponents of the bill are abandoning the fight.

Despite the frustration over the legislative process, Porth says it has, at least, provided an opportunity to "educate Canadians on what sex workers want."

"Constitutional law issues can be a little bit dusty and dry and difficult to understand," she notes.

"But when Canadians see a decision made by their Supreme Court… and then they see their government turn around and reverse that decision, that simple fact is enough to get people interested, and concerned with the issue."

That, she says, leaves her hopeful that in future, "when we try for legal reform again, we'll have more support from the people of Canada."

Meanwhile, Young warns that opponents of the new law may have to be patient in waiting for the right moment to launch a legal challenge.

"It's a lot trickier than people think," he notes.

"There are a lot of people jumping up and down, and saying that it's unconstitutional, and will lead to worse results, but the government was fairly tricky in terms of how they designed it, by at least nominally addressing the Supreme Court concerns, and then grafting on an advocacy concern from a certain abolitionist group."

The reality, says Young, "is that what they were left with is basically incoherent — but people who think you're just going to run back to the Supreme Court and get this invalidated don't understand the process."  

For his part, he thinks it's "disastrous" what the government has done.

"It makes me regret bringing the case in the first place," he told CBC News.  

"I do think it's vulnerable, but I hope people exercise prudence and caution, and wait for the right time and the right argument to unravel this mess. "