Straight Outta Edmonton: Bedford Challenge to Canada’s Prostitution Laws

Prostitution is legal in Canada. There are no laws prohibiting the sale of sex. 
However, criminal prohibitions on bawdy houses (such as brothels), living on the avails of prostitution, and communicating in public for the purposes of prostitution make almost all forms of sex work illegal. Out-call work, where sex workers meet clients in their homes or hotel rooms, is considered the only form sex work that escapes these provisions. 
On June 13, 2013, the Supreme Court of Canada will hear the latest challenge to the country’s sex work laws. The women behind the challenge — current and former sex workers intending on returning to the trade — argue that these criminal prohibitions deprive them of their right to life, liberty and security of the person guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. Rather than protecting women from the harms associated with the sex trade, the existing laws, it is said, do the opposite. They prevent sex workers from taking steps necessary to ensure their safety and security. 
The failure to criminalize sex work itself has raised questions regarding the government’s objective behind current sex work laws. On their face, Canadian sex work laws seem to be focused on reducing or abolishing prostitution. However, the courts have rejected this characterization in light Parliament’s deliberate decision not to make the practice itself illegal.  Instead, courts have held that Canada’s sex work laws are designed to prevent public nuisances, such as street solicitation, and more importantly, the exploitation of vulnerable women. 
While it may have been considered appropriate in the past for the state to involve itself in the private sexual affairs of consenting adults, this is no longer the case. Canadians no longer consider the government imposing sexual morality on the public a legitimate state objective. Sexual autonomy has become an inviolable right of all persons.   
However, public nuisance concerns and protection against the risks that emanate from sex work remain legitimate state objectives. In this regard, sex work laws have largely failed to live up to their purpose. The personal and societal harms these laws create are vastly disproportionate to the objectives they pursue. By prohibiting sex workers from using indoor locations such as their residence, hiring assistants and security, and adequately screening potential clients, they are prevented from taking reasonable steps to ensure their safety, and in certain instances, are forced into exploitative relationships. There is perhaps no more gruesome illustration of the dangers of these laws than the crimes of Robert Pickton, who methodically preyed on sex workers from Vancouver’s Downtown Eastside.
This was the view of the law taken by the Ontario Court of Appeal back in March of 2012. In that decision, the Court was unanimous in declaring the laws prohibiting bawdy houses and living on the avails of prostitution unconstitutional. To remedy the problem, the Court “read out” references to prostitution in the bawdy house provision, and circumscribed the living on the avails provision so as to only apply “in circumstances of exploitation”. If a manager or bodyguard was earning a living from revenues generated by sex workers and those sex workers were not operating in a state of exploitation, then the business arrangement would no longer run afoul of the law. 
Interestingly, the Court—with the exception of one dissenting opinion—did not find the communication provision unconstitutional. This provision, it is argued, stunts a sex worker’s ability to adequately screen clients, thereby exposing the sex worker to undue risk. However, the Court was not satisfied, based on the evidence before it, that the communication prohibition was a “dominant, or even a significant, factor among the many social, economic, personal and cultural factors that combine to place survival sex workers at significant risk on the street.”
The Supreme Court has, as it usually does, a challenging job before it. The Ontario Court of Appeal is one of Canada’s most highly regarded appellate courts and it has again produced a well-reasoned, highly detailed and thorough treatment of the law that spans nearly one hundred pages. One problem, however, that may trouble the Supremes is the Court of Appeal’s conclusion with respect to the public communication provision. With a strongly written dissent from a highly regarded judge, expect the issue to occupy considerable space in the eventual Supreme Court judgment.
What makes the Supreme Court’s task all the more difficult is that it must grapple with yet another difficult social question. Just like abortion, euthanasia and same-sex marriage before it, the Bedford case will invariably polarize some elements of Canadian society. Despite one’s moral qualms about the practice of prostitution, the fact remains that, until Parliament decides otherwise, it is a lawful enterprise. While we can wrangle over where the line should be drawn when it comes to legitimately regulating public nuisance, the law should most certainly not cause harm to the very constituency it purports to safeguard. 

Avnish Nanda and Stephen Neil are J.D. Candidates at Osgoode Hall Law School in Toronto, Ontario. Avnish currently works at a law firm in Calgary and Stephen at a law firm in downtown Toronto. 

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Straight Outta Edmonton: Solving Alberta’s Labour Shortage

China’s CNOOC Ltd.’s $15.1 billion bid for Calgary basedNexen Inc. reflects a growing interest among state-owned Asian energy companies in Alberta’s oil sands. In addition to China, three state-run Indian companiesare eyeing oil sands assets held by ConocoPhilips, jointly offering $5 billion this past July for six of its properties.

While many are skeptical of Asia’s foray into the oil sands, there is plenty to be gained by strengthening economic ties with China and India.

Although much has already been written about foreign direct investment spurring growth in the oil sands, collaboration with China and India can also address other challenges impacting the sector, as well as Alberta’s economy as a whole.

Labour shortages are by far the biggest challenge to Alberta’s economy. Demand in the oil and gas sector for workers with technical and professional skills is not being matched. Further, with the high wages being offered by that industry, workers are being driven away from other sectors of the economy, leading to a chronic labour shortage — as well as a rise in inflationary pressures — which is being felt across the province.

Solving Alberta’s labour crunch requires innovation and bold action to allow employers in the province to identify talent and entice them to live and work in Alberta.

To this end, Alberta’s colleges and universities must play an integral and much more proactive role in alleviating the province’s chronic labour shortage. Not only in training and developing young Albertans, but also connecting the province’s employers to talent the world over. This should go well beyond the international student programs operated by nearly every post-secondary institution in the province. Instead, focus should be placed on developing larger, longer term programs to train and recruit international talent to Alberta.

For instance, Alberta can benefit from recent social and legislative developments in India, which have sparked a revolutionary change in attitudes towards and opportunities for higher learning in that country.

India is experiencing a post-secondary education boom. With a middle class that has grown from the liberal economic and trade reforms of the 1990s, demand for diplomas and degrees have soared, and are seen as key to social mobility and economic advancement.

By 2020, 44 million Indians are expected to be enrolled in the country’spost-secondary education system. During the same period, the number of colleges and universities in India are expected to triple.

In order to meet the demand for higher learning, the Indian state has responded by passing legislation that would allow for foreign post-secondary institutions to establish campuses in the country. In doing so, Indian legislators hope to provide Indians greater access to the world’s leading post-secondary institutions, in addition to opening a growing sector of its economy to foreign investment.

For Indian students, instead of leaving home and paying hefty fees to attend school abroad, they can now or will be able to attend the likes of Virginia Tech, Carnegie Mellon, Warwick University and Schulich School of Business (York University) in their very own states.

In most instances, not only are the fees cheaper and the curriculum the same as their sister campuses, but students are able to complete their final semester in the home country of their college or university. This allows Indian students to obtain internationally recognized diplomas and degrees, making it easier to attain employment and immigration abroad — the goal of many.

For colleges and universities in Alberta, India offers a particularly unique opportunity.

In an era where governments are scaling back funding to post-secondary education, India presents itself as a lucrative opportunity. Alberta’s colleges and universities can make up funding shortfalls by expanding into India, with its large market, significant growth potential, and cheaper start-up and operating costs.

Further, Alberta’s post-secondary institutions can provide employers in the province with unprecedented access to India’s talent pool. Indian graduates, with their familiarity with English and strong technical skills, are aggressively sought after around the world. By being on the ground, Alberta’s colleges and universities can do a better job of identifying, developing and connecting Indian graduates to employers and industries in the province.

With respect to Alberta’s trades and technical schools, such an expansion could be especially beneficial. A shortage in trades workers is particularly acute in the province, due in part to differing regulatory requirements and expertise that make it difficult for workers from foreign jurisdictions to easily enter Alberta’s workplace.

However, by allowing NAIT, SAIT or other colleges to establish campuses in India, and offer the same trades programs and opportunities for apprenticeship in Alberta, we can standardize the training with provincial requirements. As graduates make it through the program, they can be fast tracked into Alberta on a temporary workers permit, which after the set period and application can turn into permanent residence, and eventually citizenship.

Not only will salaries and guaranteed employment opportunities draw Indian students, but a program such as this would ensure that Alberta employers are targeting individuals who have the appropriate skills and expertise to address their particular needs.

As Alberta’s economy continues to grow, novel solutions need to be developed to address the unique challenges confronting it. This requires creativity, thinking big and taking risks.

Fortunately, Albertans have a long history of doing just that.

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Straight Outta Edmonton: A New, Robust Role for Alberta in Federalism

Alberta has long played a pivotal role in Canadian federalism, with its economic might and vast oil reserves. However, the province’s equalization contributions have never quite matched its ability to influence the national agenda. This is partly due to Alberta’s size, but also reflects the province’s subdued role on the national scene.

For decades, the province engaged in an isolationist, defensive stance, strongly fending off any federal encroachment into its perceived sphere of control. This approach was consistent with both Liberal and Conservative governments in Ottawa, representing deep-seated resentment of Alberta’s expendable nature in a system where elections are largely determined by vote rich central Canada.

However, the nature of the challenges confronting Alberta today raises doubts as to the viability of this approach, particularly with increasing concerns over the province’s energy industry. Isolationism will not help the province overcome barriers to developing new means of transporting oilsands product to market, slashing the hefty discount purchasers are currently receiving. Neither will it address the major labour shortages facing Alberta, which involves making it easier for the province to lure workers from across the country and around the world. Rather, these challenges require Alberta to take a more robust role in federalism to shape the national agenda and ensure our interests are advanced.

Alberta’s role in confederation is a central issue at stake this election, with Allison Redford and Danielle Smith pitting two starkly different visions against each other. Visions both women outlined in speeches at the Economic Club of Canada a few months apart.

To Danielle Smith (speech), the solution is sticking to our isolationism and relying on a friendly federal government to make Alberta’s case to the rest of the country. Smith recognizes that this will make it difficult to expand our US oilsands market or develop new ones in Asia, but believes that an “all-Canadian solution” is the answer. By retrofitting current infrastructure, oil should flow west-east, eliminating the eastern Canada’s reliance on foreign oil and allowing depressed manufacturing regions of Ontario and Quebec to benefit from refining. A form of economic nationalism that one would expect to be proposed by Gordon Laxer, the Alberta Federation of Labour or the Alberta New Democrats than the Wild Rose.

How exactly she plans on accomplishing this without significant inter-provincial coordination is puzzling. However, the more important question is how this benefits Alberta. Refining oilsands product in Canada will increase the discount it’s sold at currently, meaning we will sell less oil and make less on each barrel sold.

Alison Redford (speech) on the other hand is calling for a break from the past, arguing that Alberta should take on a more robust role in Canadian federalism. At the core of this new role is her push for a Canadian Energy Strategy that will coordinate and advance provincial energy interests as a whole. In effect, the attempt is to link the oilsands to the energy interests of other provinces, in order to change national attitudes towards the industry. Although this sounds promising, the strategy lacks any real specifics to gauge what tradeoffs Alberta will be making in order to convince other provinces to get on board.

Regardless of what the election’s outcome, there are questions related to Alberta’s approach to federalism and its ability to address the challenges confronting the province. While the Wild Rose may have intentions of returning the province to the days of Manning, Lougheed and Klein, they and Albertans should be aware that the issues they dealt with are quite different from those that are confronting us today.

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Straight Outta Edmonton: The Market is the Solution

The Canadian Oil Sands Innovation Alliance (COSIA) is about collaboration. In a bid to meet public expectations and improve the industry’s image, 12 of the largest oilsands producers are teaming up, sharing information and intellectual property relating to environmental stewardship. By harnessing their collective strengths, they hope to improve the industry’s environmental performance and image.

Though well intentioned, collaboration is not the best way to improve environmental performance. The market is.

It’s easy to acknowledge the power of the market, and market competition specifically, in influencing firm behavior. If there is market incentive for a firm to behave in a certain manner, firms will do so, as their primary interest is profit maximization. Firms would also divert resources to behave in that certain manner in order to maximize that market incentive and gain competitive advantage, such as investing more in research and development.

Market incentives would drive behavior, leading to competition, which would lead to better ways to engage in that behavior.

This logic could apply to the oilsands. If there was strong market incentive for producers to engage in better environmental performance, they would compete with each other, developing better methods to outperform their market competitors. Invariably, producers would divert more resources into research and innovation, developing better methods of reducing their environmental impact individually, and the industry’s as a whole.

Currently, there is no such incentive.

In fact, by collaborating, industry confirms that there isn’t strong market incentive for them to develop better environmental practices individually. Rather than use their own resources to develop better environmental practices, companies are looking to work together, each benefiting from the other’s work. Though they recognize a problem, it isn’t impacting their bottom line enough to come up with solutions themselves.

Collaboration is hardly an environment for innovation. It runs the risk of firms taking environmental practices from others, instead of developing their own. There is even incentive to do this, as taking is free while developing one’s own practices requires resources that could be allocated elsewhere.

Creating strong market incentives for companies to improve their environmental stewardship will lead to better environmental performance.

One possible incentive might be linking resource royalties to environmental performance. For example, if companies hit certain government directed environmental benchmarks (emissions, pollutants, area of wet tailings, etc) they pay less. If they exceed them, they pay more.

As oilsands producers are generally price takers, this is perhaps the best way to introduce competition among them, and direct it towards addressing environmental issues and the industry’s negative perception.

Obviously though, this would require governments to get involved. Fortunately, both levels of government have long endorsed, and defended, a market dictated approach to oilsands development.

Why not the same for environmental stewardship?

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