Prostitution law in Canada: Will the Charter dialogue continue?

Constitutional law experts, such as Peter Hogg, speak about the relationship between the Supreme Court of Canada (SCC) and Parliament as a "dialogue". Parliament passes a law, which might later be challenged as being contrary to the Canadian Charter of Rights and Freedoms ("Charter"). Often, after declaring the challenged law to be unconstitutional, the SCC will delay the effect of this declaration for several months to give Parliament the opportunity to address the constitutional deficiency, yet ensure there is not a gap in Canada's regulation of an important activity. This process is referred to by some constitutional scholars as the dialogue theory. This is the potential state of affairs for some of Canada's prostitution laws in the Criminal Code. On occasion, after Parliament re-drafts and passes an amended law, there is yet another challenge where the SCC is asked to determine the constitutionality of the amended law. Often, the SCC upholds the amended law as constitutional. However, sometimes the SCC will once again send Parliament back to the drawing board. This process is referred to by some constitutional scholars as the dialogue theory. This is the potential state of affairs for some of Canada's prostitution laws in the Criminal Code.

In December 2013, in Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court of Canada held that the provisions of the Criminal Code that dealt with keeping a bawdy house (section 210), living off the avails of prostitution (section 212(1)(j)), and communicating in public with respect to a proposed act of prostitution (section 213(1(c)) were unconstitutional. According to the SCC, these provisions put the safety and lives of prostitutes at risk by preventing them from implementing safety measures such as hiring security guards or screening potential clients. The SCC concluded that these provisions offended the Charter section 7 right to life, liberty and security of the person, and were not in accordance with the principles of fundamental justice. The SCC's declaration of invalidity was suspended for one year.

Having decided to redraft these provisions, Parliament conducted online consultations. In addition, Parliament looked at models for dealing with prostitution from other countries (e.g., in Nordic countries, buying sex is illegal but selling it is not). Canada Justice introduced Bill C-36 the Protection of Communities and Exploited Persons Act on June 4, 2014. Because purchasing sex...