Peter MacKay's prostitution law news conference sowed confusion

A news conference held earlier this month by Justice Minister Peter MacKay to introduce the government's new prostitution law left a number of interested parties scratching their heads.

Lawyers, journalists and groups representing sex workers as well as those who want to help prostitutes get off the streets have spent the last week poring over Bill C-36 looking for clarity on the new law.

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Peter MacKay introduced the proposed "protection of communities and exploited persons act" in the House of Commons on June 4, but refused to give reporters an advance briefing on the legislation. They only got a copy of the bill just a few minutes before MacKay showed up to answer journalists' questions.

What followed was a somewhat chaotic news conference where reporters were left to ask questions of a minister who displayed some clear gaps in knowledge about the bill.  

The aftermath left experts trying to sort out inconsistencies between the legislation and how the justice minister interpreted it for reporters.

There were three main problems:

1. Underage prostitutes working together

"Some prostitutes we know are younger than 18 years of age. If they are in the presence of one another at three o'clock in the morning and are selling sexual services, they would be subject to arrest.… They're selling it in presence of a minor," MacKay volunteered as an example about how a prostitute could be prosecuted for selling sexual services in a public place where children might be present.

A reporter followed up by asking whether that would force the underage prostitutes to work independently where they could be at increased risk of harm.  

"Not at all. We're not making them do anything," MacKay responded.

Yet according to Justice Department officials — who were eventually allowed to brief reporters — underage prostitutes would not be charged for being in each other's presence.  

Context is important here.  

Two 16-year-old prostitutes could be charged for selling sex at the mall during the day, but police would have no grounds to charge them if they were caught working in a bar, for the simple reason that children would not reasonably be expected to be present in such an establishment. 

For the record, "communicating for the purposes of obtaining" could be a summary or indictable offence and would only apply to johns. The harshest sentences would be imposed if the offence happened in an area frequented by children.  

"Communicating to provide sexual services" would only be a concern to prostitutes who commit the offence in a place where children could reasonably be expected to be present. It's a summary offence. If found guilty, the punishment would most likely be a fine.

2. Children and prostitutes

Another journalist asked if it would be legal for someone to offer sexual services in their own home, even if children lived there or were present.

"They could. They could on evidence. If children are being exposed to prostitution in a way that is deemed to be affecting them in a negative way then charges could arise, but that would be very much based on evidence the police would have to produce. So children, to use your example, whether they are the children of the prostitute themselves or children from another family, another marriage, that would be interpreted by the police and they would have to decide whether charges would be laid," said MacKay.

There is nothing in the new bill that would permit police to charge a prostitute for selling his or her services from home if children live there. The prostitution bill contains a series of exceptions to the "material benefit" offence, including legitimate living arrangements, which cover people who live with sex workers such as spouses, roommates or children.

There is already a separate criminal offence for "corrupting children." It has been around for years and could be applied in particularly egregious cases.

3. Can a prostitute advertise?

The parts of C-36 dealing with advertising have caused a lot of confusion. At the news conference, MacKay was asked if prostitutes who take out ads could be prosecuted.  

"If there is a direct connection to the selling of sex that does not present itself in a public way then it would be legal. But if it is done so in a way that is perceived as public or available to those under the age of 18 it would be illegal," he replied. 

Justice Department officials corrected the minister. They said prostitutes advertising their own services cannot be prosecuted under the new law.  

As for the newspaper, magazine or web page posting such an ad, it might be considered a party to the offence, but only if it could be proven that it understood the ad was for prostitution.  

How to avoid confusion

It's hard to understand how the minister sowed so much confusion about his department's own much-anticipated bill.  

Things might have gone better had MacKay not freelanced the example about two underage prostitutes, refused to answer hypothetical questions and just stuck to what he was sure of in the legislation. 

That said, a briefing for reporters with knowledgeable government officials would certainly have nailed down the basics and highlighted the preamble of the bill, which has so far been pretty much lost in the shuffle.  

That makes it clear this bill is a real shift in how the government views prostitution.  

Existing laws focus on the nuisance aspects of prostitution, whereas the proposed new legislation denounces, discourages and criminalizes those who create demand for what the government sees as a socially harmful and exploitative activity.