What would sensible policy regarding sex work look like? Let’s begin with what should be something of a truism in a liberal democracy. Policy in this domain should not be moralistic. By that I mean that it should not be grounded in the judgment made by some that there is something inherently wrong with selling and purchasing sexual services. The state acts in an unacceptably paternalistic manner when it claims that, whatever the conditions in which the sale of such services occurs, it is condemnable and should therefore be prohibited by law. If two consenting adults wish to contract in order to exchange sex for money, they should be allowed to do so.

If that is the case, then a decent society needs to ask itself two kinds of questions. First, how can it ensure, or make it as likely as possible, that when a sex worker and a consumer of sexual services engage in such an exchange, they do so consensually? Second, how can it ensure that harms that might be created by the practice of sex work are prevented or mitigated?

The first of these questions takes us down deep philosophical waters. What are the conditions for “real”, rather than sham consent? Oceans of ink have flowed attempting to answer this question. This is not the place to put an end to these debates. But two things seem tolerably clear in the present context. First, sex workers do not consent when they are coerced to provide sexual services under threat of violence. Nor can they consent when they are not of an age at which we deem consent to be possible. That’s why whatever regime is chosen to regulate the “sex trade”, sex trafficking and the sexual exploitation of children need to be forcefully targeted by state laws, international agreements, and by law enforcement officials.

But a just society can probably do a bit better than simply ruling out egregious cases such as these. Poverty and lack of options often push people to do things for money that are contrary to their values, including selling sexual services. A society that truly wants to limit the sale and purchase of sexual services to cases where consent is present had better do as much as it can to combat poverty, and to provide its citizens with acceptable ranges of options. A choice is not really a choice when it is exacted at the end of the barrel of a gun or at the point of a knife. But it is also only partly a choice when it occurs against unjust background social conditions.

Any government that moralistically condemns sex work as inherently wrong, and which commits itself to investing resources to “save” women from the sex trade, but that does not do its utmost to eradicate the socio-economic conditions that leads certain women to sell sexual services out of necessity, opens itself to the charge of blatant hypocrisy.

Once a society has done as much as it can through policy to ensure to ensure that consent is present in all commercial exchanges for sexual services, it also needs to ensure that sex workers can practice their trade in safe conditions. There is very likely a greater chance of harm befalling a sex worker at the hands of a “john” then there is in the case of the provision of other kinds of services. So steps have to be taken to protect sex workers against foreseeable dangers.

The Supreme Court of Canada, in the Bedford decision, made it very plain that the criminal law in Canada failed quite miserably in this respect. By prohibiting anyone from “living from the avails” of prostitution, it effectively prevented sex workers from hiring bodyguards or drivers. By making it illegal to communicate for the purposes of the sale or purchase of sexual services, it make it much more difficult than might otherwise be the case for sex workers to screen customers. And by making it a crime for anyone to find themselves in a “common bawdy house”, it makes it impossible for sex workers to work indoors, and thus relegates them to the streets, where they are almost by definition susceptible to greater dangers.

The Court struck down these three provisions, and gave the government a year to either decide to do nothing, and allow the impugned provisions to lapse, or to replace them with compliant legislation. The Harper government has responded with Bill C-36, the “Protection of Communities and Exploited Persons Act”.

The Bill is in some ways inspired by the so-called “Nordic model”, which aims at choking off the demand for sexual services by targeting not the suppliers of such services, but those who seek these services out. Under C-36, it would now be a criminal offense to purchase sexual services.

But the proposed legislation goes beyond the targeting of johns and pimps by making it illegal for third parties to advertise the sale of sexual services in newspapers, on the Internet, and elsewhere. It also threatens to fine sex workers who ply their trade in places where there is a “reasonable” chance that children might be present. And it creates a $20 million dollar fund to help those who presently practice in the sex trade to exit it.

Does the proposed legislation answer the concerns voiced by the Justices, in their unanimous 9-0 decision in the Bedford case? Quite clearly, it does not. First, by prohibiting sex workers from advertising in various media, it pushes them out into the street in order to do so. Remember that one of the principal concerns of the Justices had been that sex workers not have to ply their trade in the streets. Unless I am missing something, it is hard to see how this restriction will not lead many sex workers into the street in order to advertise their services.

Second, by making it an offense, punishable by fines, for sex workers to practice in places where children might be able to see them, the legislation provides law enforcement officials with a very vaguely worded tool with which to harass sex workers in the streets. The safety of sex workers requires that they be able to view the police as allies rather than as enemies. If they are assaulted, they need to feel that they can turn to law enforcement officials, without having to worry about the fact that they might find themselves exposed to fines. Potentially violent johns may feel more inhibited to visit violence upon sex workers if they believe that police are not being sent a mixed message by lawmakers as to what their attitude should be toward sex workers.

Third, the criminalization of the purchase of sex means that those who continue to want to purchase sexual services will require that the sex trade be driven underground, again to the detriment of the safety of sex workers.

It is therefore unlikely that the legislation would pass constitutional scrutiny. The same kinds of concerns that led the Justices to throw out the previous Criminal code provisions would inevitably lead them to do the same in the case of Bill C-36. The Official Opposition has challenged the Justice Minister to refer the Bill to the Supreme Court in order to avoid the lengthy and costly road of legal challenges. Unsurprisingly, he has refused to do so.

So this is clearly not the end of the road for the sex work file in Canada. At some point or other, this legislation will be revealed to be as incompatible with the section 7 rights of sex workers as the previous legislation was. And we will have to think more seriously than the present government has done to think about ways in which to regulate the sex industry in ways that satisfy the various desiderata enumerated above.

One issue that will have to be scrutinized very closely is the claim that by making it a crime to purchase sexual services, demand for such services will be greatly diminished.

The evidence on this issue is still the object of controversy. The governments of Nordic countries that have gone down this road claim to have greatly reduced the incidence of sex work in their societies. Opponents claim that sex workers have merely been driven underground, into greater invisibility, and thus, into greater peril.

There are however questions that I have not seen addressed in the empirical literature, that should be at the center of debate when we are again able to debate these questions in a sane way. Let’s grant for the sake of argument that the criminalization of the purchase of sexual services does in fact reduce demand. No one is claiming that it is eradicating that demand altogether, nor that the sex trade is for all intents and purposes being eliminated in the countries that have gone the Nordic road. The risk is that, though overall numbers decrease, the conditions that are being imposed upon the sex workers that are still practicing their trade in this kind of a repressive regime are at greater risk than they had been previously. The questions we need to be asking in surveying the empirical landscape of the countries that have adopted legislation similar to that being proposed by the Harper government are not, simply: is the legislation bringing numbers down? But rather: are sex workers under this regime at greater risk than they were before, and also: is the legislation effective in removing from the market those sex workers who are the most vulnerable, leaving only those who freely consent to practice the trade?

I don’t know the answers to those questions. But when we get to a point where we are capable of discussing these matters sanely, that is, in a non-moralizing context, and by a government that is not more intent on consolidating its electoral base and on thumbing its nose at a Supreme Court with which it has clearly grown exasperated than on truly protecting the vulnerable, these are the kinds of questions we will have to ask.