It depends on how you understand the evidentiary record for such a case. He'll say, “Well, let's just refer this to the Supreme Court of Canada and they can tell us whether it's constitutional or not.” The evidentiary record that was amassed for the prior challenge had a lot to do with patterns of enforcement and implementation over a very long period of time. The idea that we can simply just take all that evidence and reuse it under a new bill seems odd to me in a challenge that seems to be so deeply rooted in the way that the legislation is enforced and what its effects are. I would have assumed that there would need to be a fairly significant period of time in order for that evidence to be amassed, and not simply relying on the police saying, “Well, we're doing that anyway, so here are the effects of that or not.”
I can see the argument that we've just had a constitutional ruling, in a sense, on this legislation, so here's the new bill; why don't we skip the stage of going through all the levels of court and refer it right to the Supreme Court of Canada? But I do question then what the evidentiary record is going to be, which is based on the actual enforcement and implementation of this bill.
I don't know if it's all right for me just to say a word about this argument about entrapment. I've read the case law on entrapment. I teach criminal law, and I can tell you that the rules about entrapment are nowhere near as broad as Professor Lowman seems to be suggesting they are. The police can't just go out and set up sting operations, whether for drugs or prostitution. Right now they're doing exactly the kind of thing we're describing for underage prostitution and there are clear rules about when the police can set up a kind of bogus sting operation and when that crosses the line into entrapment. It's not like this is a new concept or that there isn't already an established body of jurisprudence.
The same thing is true for sexual services. It's there in the legislation dealing with underage prostitution. There's a body of jurisprudence that has interpreted that term where there is some kind of doubt.
I find it very odd to say that because most of the buyers, really all of the buyers, are men and most of those in prostitution are women, it is sex discrimination to prosecute the buyers. We don't do that for sexual assault where over 90% of those charged are male.
The gendered nature of the industry is what makes it so discriminatory against women. I find it very strange and not consistent with substantive equality principles at all to turn that on its head and say that by targeting men for their acts of sex discrimination, we're discriminating against them in some form of reverse discrimination. That's not a version of section 15 of the charter that I recognize as it's been applied to sexual harassment in the workplace, sexual assault, and a whole other number of gendered acts of sex discrimination.