Taking Back Her Rights: Bill C-36 and the Legality of Prostitution in Canada

This paper provides an analysis of the social and legal construction of prostitution in Canada, the decriminalization and abolitionist models, and the design of Bill C-36. On December 20, 2013, the Supreme Court struck down Canada's anti-prostitution laws. Stephen Harper's Conservative government was forced to draft new legislation concerning Canada's sex trade. The federal government responded with the criminalization of consumers and procurers of prostitution, and the decriminalization of sex workers through Bill C-36. The concept of women as sexual property for men has a long history in Canada. Prostitution flourished around colonialist infrastructure, often exploiting colonized people, and populations of low socio-economic position. The criminalization of prostitution in the early 20th century was framed as a "social purity" movement, but it was a reaction to social-historical process of industrialization and urbanization. The mass migrations of immigrant and rural populations entering the cities were perceived by the burgeoning urban middle class as a threat to whiteness and femininity as defined by the Victorian nuclear family. Women existing outside of the Victorian paradigm of femininity were pathologized as ruined and debased. The "social purity" model of criminalization defined the legal status of prostitution in Canada for almost a century. The Canada vs Bedford Supreme Court charter challenge successfully argued that the criminalization of prostitution violated sex workers’ constitutional right to security of the person. Sex positive, liberal feminist theorists have argued that the full decriminalization of prostitution will create regulated market conditions where sex work becomes a leisure service that is safely produced and consumed within the modern post-industrial economy. The abolitionist model disputes the decriminalization perspective through an intersectionality of feminist theoretical lenses contending that prostitution is inherently exploitative, misogynist and racist, and must be eradicated from society. Bill C-36 was ostensibly constructed around the abolitionist model, but its progressive intent remains questionable. Canada's shift toward neo-liberalist state policy has resulted in increased border security, and the control and exploitation of global migratory populations. Abolishing the consumption and procurement of sex through legislation places an inordinate amount of faith upon the legitimacy and rationality of the legal system's power. The power relations that produce the sexual exploitation of marginalized people both locally and globally need to change; otherwise, laws such as Bill C-36 will serve only to punish and control, and not to prevent.

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