Open Letter to Kathleen Wynne: Refer C36 to the Ontario Court of Appeal Immediately


by Nikki Thomas

The Right Honourable Premier Kathleen Wynne:

Bill C36, the Conservative Party of Canada’s response to the Supreme Court of Canada’s unanimous decision on Canada’s prostitution laws, has now passed third reading in both the House of Commons and the Senate. It is likely to receive Royal Assent in the coming weeks, after which it will become law.

This bill is an assault on the entire sex work community. We have done our best to share our stories, and we have raised our concerns, put forward mountains of evidence, and made every possible effort to have our voices heard. But we have been dismissed, ignored, and deemed unworthy of contributing to an issue that will affect us in the most fundamental ways.

This bill will put women and marginalized peoples in danger. This bill will put vulnerable people in a more vulnerable position. This bill will unquestionably visit violence and death upon sex workers, and will recreate the same conditions that allowed predators like Robert Pickton and Gary Ridgeway to thrive.

This bill absolutely violates the rights guaranteed to us by the Canadian Charter of Rights and Freedoms. Minister Peter MacKay has even admitted as much, when he claimed it may hold up under Section 1 – a tacit admission that it fails the protections afforded by other sections. But I remind you – this is the very same government that insisted the previous laws were indeed constitutional, and the Supreme Court unanimously disagreed. They ignore and disrespect the constitution at every turn, and they have allowed ideology to trump rationality time and again. Their credibility is non-existent, they engage in decision-based evidence-making instead of evidence-based decision-making, and their contempt for the Supreme Court is blatant and appalling.

When I spoke to you at Queen’s Park back in June, you assured me that your concern was with how this law would affect vulnerable people, and you have publicly stated that you will continue to monitor the situation. You said you would consider all available options. Now, Prime Minister Harper is trying to force you to dedicate provincial resources to enforcing this law, which is a failure on every level. Will you allow him to force his will upon you, and the sex-working citizens of Ontario?

I ask of you this – as soon as it receives Royal Assent, please refer this bill immediately to the Ontario Court of Appeal for a constitutional reference, and do not pursue prosecutions until they determine its constitutionality. You cannot, in good conscience, expend provincial resources on the enforcement of this law when it is so clearly in need of judicial review at the highest level. The sex work community cannot afford years of violence and death as this law works its way through the courts.

Doing so would cost you nothing, and you would simply be doing your due diligence to ensure the laws our provinces enforces meet the basic constitutional standard that all laws much satisfy. Sex workers are Canadians who deserve the full protection of our constitution, and do not deserve to be treated like we do not matter.

The time to act is upon you, and you are the only person who can prevent Stephen Harper’s laws from putting sex workers in grave danger. You must stand up to him now. If you do not, you will either be standing with him, or standing idly by while predators and exploitative criminals use these laws to their advantage. There is no middle ground on this issue.

I implore you, Premier Wynne – please stand up for what you know is right.

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