Wynne questions if federal prostitution law respects Charter rights

Ontario Premier Kathleen Wynne says she has “grave concern” that Ottawa’s controversial new prostitution law won’t protect the safety of sex workers and has opened the door to supporting a constitutional challenge to the legislation.

In a statement Sunday, Ms. Wynne said she has asked her Attorney-General, Madeleine Meilleur, “to advise me on the constitutional validity of this legislation … and our options as a government in the event that the legislation’s constitutionality is in question.”

The Premier said the province would enforce the legislation, but wanted to ensure “we are upholding the Constitution and the Charter.”

The federal government drafted the legislation, which came into force on Saturday, in response to a December, 2013, Supreme Court of Canada decision that struck down the country’s prostitution laws and gave Ottawa one year to replace them. The new law largely criminalizes buying sexual services, but sex workers could still be charged for discussing a transaction in certain areas such as near children’s playgrounds. The bill also criminalizes advertising for sexual services for payment.

Ms. Wynne’s statement is likely to generate further tension between the leader of Canada’s most-populous province and Prime Minister Stephen Harper. It was far more resolute than that of another province with a sizable sex trade of its own, British Columbia. When The Globe and Mail asked the B.C. government if Premier Christy Clark agreed with Ms. Wynne, Attorney-General Suzanne Anton replied in a statement that her department “will study the legislation.”

Ms. Anton expressed no overt concerns about the new law, saying only that she will “continue to work with my federal, provincial and territorial counterparts to find long-term solutions to protect vulnerable and at-risk women and youth.”

The Vancouver Police Department has said in response to the new legislation it will prioritize the safety of sex workers over enforcing the new laws.

Justice Minister Peter MacKay has said he believes the bill would “likely” survive a court challenge, but several legal experts have disagreed. The bill has also drawn fire from sex workers and other supporters ranging from union leaders to more than two dozen Toronto city councillors, who have publicly called for Ms. Wynne to challenge the new law. They say it will put sex workers in harm’s way by limiting their ability to speak with and screen potential clients.

“I’m really pleased that the Premier took this initial step,” Toronto councillor Kristyn Wong-Tam, one of the councillors who signed a letter to Ms. Wynne last week, said on Sunday. Ms. Wong-Tam called the Premier’s statement a “great first step” but added that she would like to also see the Premier direct police not to enforce the act until she receives an opinion about whether or not it violates the Constitution.

Nikki Thomas, former executive director of the Sex Professionals of Canada, also welcomed the Premier’s move. “I think that ultimately, at the very least, if she’s willing to refer it [to the Supreme Court] she will end up saving countless years of litigation and possibly sparing sex workers from significant violence,” Ms. Thomas said.

A spokeswoman for Mr. MacKay said the new law lives up to the Supreme Court’s concerns by introducing “important new measures to protect women, including enabling sex workers to take safety measures … such as hiring bodyguards, working from a fixed indoor location, and negotiating safer ways to sell services – except in or next to places designed for use by children.” She said the government consulted with sex workers and “sought the input of all Canadians” through an online consultation process.

There has been growing divisiveness between Ms. Wynne and Mr. Harper of late. Last month, Ms. Wynne said she and the Prime Minister hadn’t met in 11 months and that he had turned down her last request to get together. Mr. Harper fired back last week, saying Ms. Wynne should focus on Ontario’s well-publicized fiscal challenges and “not on confrontation.”