Sunday, June 08, 2014

Bill C-36 Analysis In Detail Part 3: Advertising

The government is playing some very subtle games with the language in C-36.  In some respects, the language is ridiculously broad (e.g. the undefined nature of "sexual services"), in other areas they are getting remarkably specific.
Advertising sexual services286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of(a) an indictable offence and liable to imprisonment for a term of not more than five years; or(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months. 
Immunity — material benefit and advertising286.5 (1) No person shall be prosecuted for(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or(b) an offence under section 286.4 in relation to the advertisement of their own sexual services. 
Immunity — aiding, abetting, etc.(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services. 
The implication here is that a prostitute can advertise their own services, this is somewhat more generous than I had initially expected.  But, because of the other aspects of the law, this still ends up smelling like a form of entrapment.

Okay, an individual is allowed to advertise their services (so, no, your local Sun newspaper isn't likely to go bankrupt from a lack of advertisers), but you aren't, apparently, supposed to actually purchase those services:
286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of,(i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,(A) for a first offence, a fine of $2,000, and(B) for each subsequent offence, a fine of $4,000, or(ii) in any other case,(A) for a first offence, a fine of $1,000, and(B) for each subsequent offence, a fine of $2,000; or(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months and a minimum punishment of,(i) in the case referred to in subparagraph (a)(i),(A) for a first offence, a fine of $1,000, and(B) for each subsequent offence, a fine of $2,000, or(ii) in any other case,(A) for a first offence, a fine of $500, and(B) for each subsequent offence, a fine of $1,000. 
If this smells a little fishy to you, there's a good reason for it.  It is.  In today's world of mass surveillance, how much do you think it's going to take for the government to designate any phone or email address associated with "sexual services" as something to monitor and simply start grabbing any and all traffic related to that address/phone number?  (Hint:  It isn't difficult at all, and I suspect that the "anti-bullying" bill (Bill C-26) before parliament would allow them to do so without a warrant and still use the evidence against you in a court of law)

What's the net effect of this?  Fundamentally, it means that although someone can advertise sexual services, anybody "procuring" those services is subject to significant criminal penalties.  Under the surveillance capabilities today, it's almost impossible not to have any "communication for procurement" to be monitored except in isolated, private places.  In other words, creepy places where the "johns" can assert control and dominance through violence or the threat of it.

Because of the undefined (and therefore, presumably broad) wording of "sexual services", I wonder how this will play out for sex shops, BDSM dungeons and other businesses which cater to various sexual appetites that aren't necessarily prostitution per se.  Because a lot of those exist as legal businesses, separate from their owners and with employees, one is left wondering just how it is that those businesses will be able to advertise themselves without the owners being charged under these laws?

While I'm sure that this will make people like MP Joy Smith ecstatically happy, driving sex underground doesn't really solve any of the issues associated with prostitution as identified in Bedford.  (Ms. Smith is the same twit who wants to block all porn on Canada's internet)  There are aspects of this legislation which certainly start to create a blanket ban on any and all sexuality, and in particular the discussion of that sexuality.  These blanket proscriptions create interesting problems not only for prostitutes, but for others who are working in the sex industry, or work with sexual minorities of one sort or another for any reason.

One thing we already know from experience is that driving it underground won't address the very real and legitimate safety and security of the person issues that the Bedford decision raises.


4 comments:

Anonymous said...

Could someone explain how the advertising provision in bill C-36 is different from existing law? It's been my assumption that advertising as it stands now is "communicating for the purposes" of sexual services and is therefore illegal.

Is this correct? If so, are there any significant changes to advertising in Bill C-36 from what exists now?

MgS said...

There's a subtle, but important change in the language.

Where the existing law is quite specific about prostitution, the new law introduces a rather undefined term "sexual services" (which was placed in context in the existing code using the language "sexual services of a prostitute" whereas the new law simply uses the term "sexual services".

Depending on how this term is interpreted, it could mean anything from prostitution related activities to sex therapists.

In other words, the new language is much broader, and could be used as a basis for outright bans on advertising anything that even hints at sexuality.

It also raises interesting issues related to adult websites and other commercial ventures.

Rebecca said...

So is delivering a baby in a labour and delivery suite in a hospital now a criminal offence since a woman's sex organs are involved? Or is this practice exempt because Canada's universal health care is free, and the woman is not actually 'paying' the nurses, and doctor's for their services?

So if I understand this correctly, it is permissible to go to a bar room, and get an unknown individual drunk, and have sex with them is legal because no money is involved up front. But to hire someone for sex is illegal because money is involved.
Is Bill C-36 stating that an individual is NOT being exploited if money is not directly involved, but they are if money IS directly involved? My god this is confusing.

MgS said...

Yup ... that's about it.

Typical of a government who is more worried about keeping its moralizing "base" happy than actually writing meaningful laws.