EVALUATING CANADA’S SEX WORK LAWS: The Case For Repeal
Let’s open the discussion CONTRIBUTORS
Authors Brenda Belak Darcie Bennett
Reviewers Amy Lebovitch Kerry Porth Alison Clancey Katrina Pacey
Layout and design Christa Ledding
Acknowledgements Thank you to everyone who provided information and insightful feedback and comments through the process of creating this report. Special thanks to our legal intern, Leila Geggie Hurst, and our articling student, Caitlin Shane, for assistance with proofreading and editing.
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PAGE 2 · Pivot Legal Society Contents
Executive Summary...... 4
List of Terminology & Acronyms ...... 9
Opening the Discussion...... 10
The Downfall of Canada’s Prostitution Laws ...... 14
Criminal Laws and Sex Worker Safety in Vancouver’s Downtown Eastside ...... 14
Sex Workers United Against Violence Society’s Charter Challenge...... 17
Canada (Attorney General) v. Bedford, Lebovitch and Scott ...... 20
The Bedford Decision and Its Implications...... 22
Back to the Future: The Protection of Communities and Exploited Persons Act...... 25
Broken Laws: The PCEPA in Practice...... 30
Ban on Purchasing Sex ...... 39
Bans on Communicating to Sell or Purchase Sex ...... 47
Bans on Working with Others...... 53
Ban on Advertising ...... 60
Exemption for Sex Workers...... 63
False Equation: The Conflation of Trafficking and Sex Work...... 65
Better Options: A Human Rights Approach to Sex Work...... 75
Appendix 1: Key Provisions from the Charter of Rights and Freedoms..... 80
Appendix 2: Existing Criminal Code Provisions on Violence and Exploitation...... 88
Pivot Legal Society · Page 3 the SCC concluded that working indoors from known locations was safer Executive for sex workers. Summary It has never been illegal to sell sex in Canada, but the Criminal Code provisions at issue in Bedford together made it It is time for Parliament to reform Canada’s virtually impossible to engage in sex work laws on sex work. The Criminal Code without breaking the law. In the face of provisions introduced by the Protection of the SCC’s unanimous decision, the federal Communities and Exploited Persons Act government was left with two choices: (PCEPA) are unconstitutional and should either remove the sections that had been be repealed. This report provides a history found to be unconstitutional from the of the litigation that struck down previous Criminal Code or introduce new criminal laws and the approach taken in drafting laws that could withstand constitutional the PCEPA. It gives an overview of the scrutiny. Although sex workers, public impacts that the PCEPA is having on sex health experts, and human rights groups workers across Canada and why the law argued for the first approach, the federal is unconstitutional. Finally, it draws from government committed to drafting new advocacy by sex workers to make key criminal laws almost immediately. recommendations for creating laws that respect and promote the human rights The resulting PCEPA introduced a host of sex workers. of new Criminal Code provisions aimed at sex workers, their clients, and third Background parties involved in the sex industry. Most notably, for the first time in Canadian history, the new law outlawed paying for In December 2013, after a lengthy sex. There are now five broad categories legal battle initiated by Canadian sex of sex work-related offences in Canada’s workers, the Supreme Court of Canada Criminal Code: (SCC) issued its landmark decision in the case of Canada (Attorney General) v. • paying for sexual services Bedford, Lebovitch, and Scott (Bedford). • communicating to exchange The SCC struck down the Criminal Code sexual services provisions that prohibited sex workers from communicating with clients in • profiting as a third party from public and working from fixed locations, someone else’s sexual services and prohibited others from receiving sex workers’ earnings. These provisions • procuring (hiring or inducing) someone were found to be unconstitutional, to provide sexual services because they violated sex workers’ rights to security of the person under • third party advertising to provide Section 7 of the Charter. On the whole, sexual services
PAGE 4 · Pivot Legal Society Along with new Criminal Code provisions, target some of the most vulnerable the PCEPA introduced a new rationale for street-based sex workers, who laws regulating sex work. According to continue to be harassed by police the federal government, the legislation in many communities. “reflects a significant paradigm shift away from the treatment of prostitution Sex Workers Focus on Avoiding as ‘nuisance,’ as found by the Supreme Detection Instead of on Safety Court of Canada in Bedford, toward treatment of prostitution as a form of As a result of increased police sexual exploitation that disproportionately surveillance on sex workers and clients, and negatively impacts on women sex workers are still working in isolated and girls.” The PCEPA is a variant of and unsafe conditions. Street-based asymmetrical criminalization, also known sex workers are under pressure to work as the “Nordic model,” which ostensibly in less populated areas and to get into aims to eliminate prostitution by making cars before they have properly screened it illegal without punishing sex workers prospective clients. With clients themselves, who are considered to be focused on avoiding police detection, the “victims” of prostitution. indoor sex workers are also motivated to work in more hidden locations. Findings Fear of Enforcement Inhibits Sex Workers’ Access to the Justice System The PCEPA has been mischaracterized as targeting only those who harm or exploit Prohibiting the purchase of sexual sex workers, without criminalizing sex services means that sex work remains workers and others who may enhance a clandestine activity and that sex their safety. Analysis of the Criminal workers actively shun police contact. Code provisions in the PCEPA shows that This increases sex workers’ vulnerability the legislation has resulted in sweeping to violence from predators posing as criminalization of the sex industry, clients, who target sex workers precisely threatening the physical and economic for this reason. security of sex workers, even though they are immunized from prosecution in certain Sex Workers Cannot Legally circumstances. The PCEPA violates sex Negotiate Consent to Conditions workers’ rights to freedom of expression of Sexual Services and association, security of the person, and equal treatment under the law. A principle tenet of Canadian sexual assault law is the importance of Sex Workers Continue to Fear Arrest voluntary and affirmative consent to any sexual act. Because of broad restrictions The PCEPA retains provisions on on communicating, it is impossible communicating that specifically to engage in discussions to establish
Pivot Legal Society · Page 5 the acts that sex workers are willing allowed predators to murder, rape, to perform – and those they are not – and abuse sex workers with impunity. without breaking the law. Conclusion Laws are a Barrier to Working Indoors and Working Collectively Despite the PCEPA’s avowed aim of protecting vulnerable people from The material benefit and procuring exploitation, bans on purchasing sex, provisions of the PCEPA have been communicating for the purposes of framed as capturing relationships selling or purchasing sex, working of exploitation, yet in reality they collectively, and advertising sexual criminalize managers, receptionists, services replicate many of the dire bouncers, and other security personnel consequences for sex workers’ health who screen clients onsite at sex work and safety identified in Bedford. businesses. They also effectively There is little doubt that the PCEPA is prevent any business offering sexual unconstitutional and actively prevents services from operating legally. people who sell or trade sexual services These restrictions, coupled with the from exercising their fundamental prohibition on advertising, make it Charter rights. more difficult for sex workers to work indoors and with the support of others. Recommendations
Sex Workers are Excluded from Workplace Protection Regimes Laws prohibiting the exchange of sex for compensation between consenting Sex workers employed at indoor adults are not the way to end endemic businesses frequently complain violence against women or to address of unfair labour practices: unpaid inequality and systemic poverty. wages, fines for arbitrary workplace Instead, we urge lawmakers and police rules, sexual harassment, and shifts to work with sex workers to take the longer than employment laws permit. following steps to create a safer Criminalization of sex work as an sex industry: industry excludes sex workers from the workplace protections and remedies Repeal the Laws that available to other workers in Canada. Criminalize Sex Work
Sex Workers Continue to Experience Ensuring that sex workers’ rights Stigma and Discrimination are protected requires the repeal of the PCEPA and all criminal laws that The PCEPA inculcates stigma and cuts prohibit the purchase of sexual services sex workers off from legal protections, and prevent adults selling sex from perpetuating conditions that have working with others in non-coercive
PAGE 6 · Pivot Legal Society situations. Changing the law would not way to ensure their genuine autonomy. just make sex work safer; it would be a Low-income sex workers need access first step towards undoing the stigma to more substantial income assistance experienced by people who do sex work. benefits, safe and affordable housing, and culturally appropriate educational Use Existing Laws to Prosecute opportunities and health services. Perpetrators of Violence Non-judgmental services and resources need to be made available to those who Instead of a being governed by a require them most, whether they want separate legal regime that sets them to continue in sex work or to pursue apart, sex workers need to be able to other work. access the police and to enjoy the full benefit of legal protections theoretically Don’t Conflate Sex Work available to everyone in Canada, and Trafficking including Criminal Code provisions to punish perpetrators of violence. The human trafficking provisions in the Criminal Code and the Immigration and Work with Sex Workers to Ensure Refugee Protection Act can and should Access to Provincial Employment be applied in bona fide situations of Protections and Create Appropriate coercive labour. At the same time, law Municipal Bylaws enforcement and government must recognize that sex work is not trafficking. Decriminalizing sex work would not The misuse of anti-trafficking laws to necessarily mean that there are no investigate sex work businesses and restrictions on sex work – however, individuals endangers sex workers by any regulations should be developed making them wary of accessing health together with sex workers, who are care services and reporting crimes the experts in their own business. to police. Sex workers should have access to the protections afforded all other workers Learn from Other Jurisdictions by provincial employment standards and occupational health and safety New Zealand fully decriminalized legislation. They should be engaged adult sex work in 2003 and instituted in the drafting of any local bylaws a system that puts much of the governing where and how sex responsibility for regulating sex work work occurs. in the hands of local municipalities in cooperation with sex workers. Invest in Supports for Low Income New Zealand’s sex workers report Sex Workers much greater confidence in police protection, as well as access to Using criminal laws to eliminate employment protections. people’s sources of income is not the
Pivot Legal Society · Page 7 Work on Undoing the Stigma that Surrounds Sex Work
The greatest commonality between sex workers in Canada is the stigma they face. Although more education is needed, changing the federal law would be a first step towards undoing the stigma and treating people who do sex work as full members of our communities.
Sex workers remain hopeful that the current federal government will repeal the PCEPA and other laws that criminalize sex work. In the event that this does not happen, Canadian sex workers are prepared to bring a new constitutional challenge to this legislation.
PAGE 8 · Pivot Legal Society List of Terminology & Acronyms
Butterfly – an organization in Toronto PCEPA – Protection of Communities and offering support and services to migrant Exploited Persons Act and immigrant sex workers SCC – Supreme Court of Canada DTES – Downtown Eastside, a low income area of Vancouver SPOC – Sex Professionals of Canada
Im/migrants – persons who have come to STI – sexually transmitted infection Canada, including immigrants, refugees and migrants, regardless of documented status SWUAV – Sex Workers United Against Violence, an organization run by and for IRPA – Immigration and Refugee current and former sex workers in the DTES Protection Act SWAN – SWAN Vancouver Society, an MWCI – Missing Women Commission organization in Vancouver offering support of Inquiry and services to indoor sex workers
MP – Member of Parliament UNAIDS – a global organization leading and supporting international response to HIV MSM – men who have sex with men and AIDS.
NDP – New Democratic Party of Canada VPD – Vancouver Police Department
PACE – a peer-driven sex worker advocacy WISH – a sex worker support organization organization in Vancouver in Vancouver offering a range of services to street-based sex workers, including PRA – New Zealand’s Prostitution the MAP (Mobile Action Project) van Reform Act, 2003 outreach project
A note on terminology:
In its 2016 policy, Amnesty International defines sex work as “the exchange of sexual services, involving sexual acts, between consenting adults for remuneration, with terms agreed between buyer and seller.” We adopt the same definition, and we refer to the people who earn income through exchanging sex as sex workers. In doing so, we recognize not everyone who sells or trades sex identifies as a sex worker.
When we use prostitution, it is in reference to previous laws that used that term. Current Canadian laws refer to obtaining, communicating to obtain, materially benefitting from, procuring a person to provide, and advertising sexual services for consideration.
Pivot Legal Society · Page 9 Charter of Rights and Freedoms.3 Opening the The SCC gave the government one Discussion year to determine whether new, Charter-compliant prostitution laws should be enacted. Sex workers’ rights groups and allied groups across On December 20, 2013, after a lengthy Canada urged the federal government legal battle initiated by Canadian sex to consider sex work as a labour workers, the Supreme Court of Canada rights issue and not to introduce new (SCC) issued a landmark decision in criminal laws. Instead, the government the case of Canada (Attorney General) responded to the Bedford decision with 1 v. Bedford, Lebovitch, and Scott. The the Protection of Communities and SCC stuck down the Criminal Code Exploited Persons Act (PCEPA). This provisions that prohibited sex workers sweeping piece of legislation introduced from communicating with clients in a host of new Criminal Code provisions public and working from fixed locations, aimed at sex workers, their clients, and and prohibited others from receiving sex third parties involved in the sex industry workers’ earnings. and criminalized the purchase of sex in all circumstances for the first It has never been illegal to sell time in Canada. sex in Canada, but taken together, the Criminal Code provisions at The PCEPA is a modified form 2 issue in Bedford made it virtually of asymmetrical criminalization. impossible to engage in sex work Asymmetrical criminalization, also without breaking the law. The referred to as the “Nordic model” SCC found that those laws made because it is the basis for the laws in a legal activity significantly more Sweden, Norway, and Iceland, aims dangerous by preventing sex workers to decrease demand for sex work and from effectively screening clients, ultimately abolish it. Criminal sanctions working indoors, working collectively, target clients and third parties working in and accessing police protection. the sex industry instead of sex workers Accordingly, the SCC ruled that the themselves, who are assumed to be laws violated sex workers’ rights to women and considered the “victims” of life, liberty, and security of the person prostitution, irrespective of sex workers’ guaranteed by Section 7 of the own personal narratives and experiences. There is little evidence from any country to support the claim that prohibiting the purchase of sex stops the demand for sex 1 2013 SCC 72 [Bedford SCC].
2 In cases with multiple parties, courts follow the practice using only the first-named 3 Part I of the Constitution Act, 1982, applicant or plaintiff and defendant to being Schedule B to the Canada Act, create a short form of the case name. 1982 (UK), 1982, c 11 [the Charter].
PAGE 10 · Pivot Legal Society work or reduces the number of people a factor as well.5 The PCEPA reflects engaged in sex work.4 a significant paradigm change, from treating prostitution as nuisance to The PCEPA diverges from asymmetrical recasting it as form of exploitation of criminalization by continuing to vulnerable women and girls. When target street-based sex workers for the PCEPA was enacted, the federal communicating with clients in specific government stated its concern was public spaces, although these spaces are for vulnerable women and girls. This poorly defined in the law. While some rang particularly hollow alongside the people in Canada engage in sex work government’s refusal to support an through situations of constrained choice, inquiry into the epidemic of missing and 6 criminalizing those who are marginalized murdered Indigenous women in Canada. by poverty does not increase their The government also disingenuously options, improve their relationships equated sex work with human trafficking, with police, or make them safer. Indoor an offense already captured by existing workers, who were virtually invisible criminal laws. Laws and narratives that to law enforcement under previous fail to distinguish between sex work laws, are also feeling the impact of involving consenting adults and sexual enforcement under the PCEPA. The use exploitation or trafficking have been of criminal laws to regulate sex work identified by the United Nations as puts those in the sex industry in conflict undermining efforts to address those 7 with the law and perpetuates the stigma critical human rights issues. and discrimination they face. The PCEPA is unlikely to withstand Historically, using the blunt instrument constitutional scrutiny because it of criminal law to regulate sex work has infringes sex workers’ rights to freedom primarily been justified in the name of of expression, freedom of association, controlling public nuisance, although regulation of morality has always been 5 Parliament of Canada, The Challenge of Change: a Study of Canada’s Prostitution Laws (Ottawa: House of Commons Standing Committee on Justice and Human Rights, 2006), http://www.parl.gc.ca/ 4 S. Dodillet and P. Östergren, “The Swedish content/hoc/committee/391/sslr/reports/ Sex Purchase Act: Claimed Success and rp2610157/391_just_rpt06_pdf/391_just_ Documented Effects,” (paper presented at rpt06-e.pdf [Challenge of Change]. the International Workshop: Decriminalizing Prostitution and Beyond: Practical 6 Note that the current government has Experiences and Challenges, The Hague, initiated a Missing and Murdered Women 2011), http://www.plri.org/sites/plri.org/files/ Inquiry, which started work in the fall Impact%20of%20Swedish%20law_0.pdf of 2016. ;D Kulick, “Sex in the New Europe: The Criminalization of Clients and Swedish 7 Joint United Nations Programme on HIV/ Fear of Penetration,” Anthropological AIDS, UNAIDS Guidance Note on HIV and Sex Theory 199, no.3(2) (2003); Amnesty Work (Geneva: UNAIDS, 2012). http://www. International, Policy on State Obligations to unaids.org/sites/default/files/sub_landing/ Respect, Protect and Fulfill the Rights of Sex files/JC2306_UNAIDS-guidance-note-HIV-sex- Workers, POL 30/4062/2016, 26 May 2016. work_en.pdf [Guidance Note on Sex Work].
Pivot Legal Society · Page 11 security, liberty, autonomy, and equality Broken Laws: The PCEPA in Practice and is therefore unlikely to withstand examines each of the primary offences constitutional scrutiny. The PCEPA’s under the PCEPA, focusing on their one-size-fits-all approach applies a implications for sex workers’ rights. uniform set of assumptions to an It analyzes how bans on purchasing extraordinarily diverse set of activities sex, communicating for the purposes and circumstances, and in doing so, of selling or purchasing sex, working reinforces the stigma surrounding together with others in sex work, and sex work. advertising sexual services replicate many of the dire consequences for sex Sex workers and their allies call workers’ health, safety, and human rights on Canada’s federal government identified in Bedford. The constitutional to decriminalize sex work and to analysis considers evidence from demonstrate leadership by implementing Sweden and Norway as well as evidence-based policies grounded in Canada suggesting that asymmetrical sex workers’ human rights and lived criminalization undermines sex workers’ experiences. Finally, we call on all levels abilities to control their working of government to invest in programs conditions or enjoy equality under the that protect and support all vulnerable law. It may be useful when reading this people, regardless of whether they chapter to refer to Appendix 1, which may be involved in sex work. provides brief descriptions of the Charter rights potentially infringed by the PCEPA and the legal tests courts would apply in Overview of This Report adjudicating claims.
The first chapter of this report, The False Equation: The Conflation of Downfall of Canada’s Prostitution Laws Trafficking and Sex Work assesses the focuses on past challenges to Canadian human trafficking provisions in the criminal prostitution laws by sex workers. Criminal Code, which were slightly It summarizes the SCC’s unanimous modified by the PCEPA, and the harms decision in Bedford, which struck down arising when trafficking law enforcement three provisions of the Criminal Code, is used to target sex work. from the particular perspective of Pivot Legal Society’s clients, sex workers in Vancouver’s Downtown Eastside. Better Options: A Human Rights Approach to Sex Work focuses on the future of sex work laws in Canada. We Back to the Future: The Protection of conclude that laws prohibiting the Communities and Exploited Persons exchange of sex for compensation Act looks at the federal government’s between consenting adults are not the response to the SCC Bedford ruling and way to end endemic violence against the ideological agenda that drove the women or dismantle the economic and drafting and adoption of the PCEPA. social barriers affecting people who have been disadvantaged by poverty,
PAGE 12 · Pivot Legal Society disability, Canada’s legacy of colonial oppression, immigration status, or discrimination based on their sexual orientation or gender identity. We urge lawmakers and police instead to work together with sex workers and other community members and to put resources and attention where they belong: into social programs that will genuinely protect communities and exploited persons.
Pivot Legal Society · Page 13 compromising their security and The Downfall health. of Canada’s In order to fully evaluate the potential safety, human rights, and Charter Prostitution implications of the current laws brought in by the PCEPA, it is critical to understand the circumstances that led Laws sex workers to challenge the previous laws. This section describes the complex, intertwined legal proceedings Prior to the introduction of the PCEPA, of the two previous challenges to the sale of sexual services between Canada’s prostitution laws and the consenting adults8 had always been SCC’s reasons in its unanimous legal in Canada. However, the Criminal decision invalidating the laws. Code placed a number of limitations on how and where sex work could take place. Until they were found to be Criminal Laws and unconstitutional, these limits included Sex Worker Safety prohibitions on communicating in public for the purpose of engaging in in Vancouver’s prostitution; being found in, occupying, Downtown Eastside keeping, or transporting a person to a common bawdy house; and living off the avails of prostitution. Criminal Code provisions related to adult prostitution have always deeply affected street-based sex workers. In These prohibitions made it illegal for order to avoid police detection, sex sex workers to work outside, to work workers have had to work alone, conduct from a fixed location, and to work business outdoors in isolated areas, together with others. One of the and rush into vehicles before they have results was that over the past several had the opportunity to screen clients or decades, many sex workers (and their negotiate the terms of the transaction, clients) faced criminal consequences including price, types of sexual services, for engaging in an otherwise legal and condom use.9 activity. Another was that, in order to avoid police detection, sex workers were forced to work clandestinely, preventing them from implementing their own safety strategies and
8 Adult is defined by the Criminal Code as a person over the age of 18. Criminal Code, RSC 1985, c. C-46, s 212(4). 9 Bedford SCC, paras. 71-72.
PAGE 14 · Pivot Legal Society sex workers from using screening How Do Laws techniques.12 For street-based sex workers, these include, among other Endanger Sex things, referring to “bad date sheets” that provide descriptions of predators and their vehicles, assessing the client’s Workers? sobriety, negotiating terms such as the services to be offered and the use of Displacement and condoms, and scanning the interior of a Client Screening vehicle to ensure that door handles are in place and that nothing is hidden in the Although it is estimated that less back seat. If communication with clients than 20% of all sex workers in Canada is illegal, sex workers are rushed to get work outdoors, because of their out of public view quickly and do not visibility, street-based sex workers have time for screening. The likelihood have consistently borne the brunt of of detection and arrest was found to enforcement efforts. The vast majority increase with the amount of time spent of criminal charges laid to date – on the street before getting into a car. estimated to comprise 90% of the total sex work-related charges since For indoor workers, screening can 1980 – have involved communicating in include requiring that clients provide public, meaning that criminalization has names, references, and verifiable call disproportionately impacted sex workers back numbers, and that they call from 10 who worked on the street. After the unblocked numbers. Sex workers may communicating law was enacted in 1985 correspond with clients through email, to reduce “nuisance”, the number of meet them first in a public place, or use missing and murdered sex workers in web cameras to chat with and visually 11 Canada rose dramatically. assess clients before meeting in person. Commercial sex work businesses In Bedford, the SCC identified client similarly may require different types of screening as one of the most important client information, including credit cards tools available to sex workers to protect and call back numbers, before booking their safety and health and found appointments. Premises with a front that the law prevented street-based desk provide an opportunity to assess clients in person before they meet with sex workers.
10 Challenge of Change, 9.
11 John Lowman, “Violence and the Outlaw Status of (Street) Prostitution in Canada,” Violence Against Women 6, no.9 (2000): 987, doi: 10.1177/10778010022182245. 12 Bedford SCC, para. 71.
Pivot Legal Society · Page 15 The vulnerabilities and stigma created by pressures on outdoor sex workers affect these laws have led to unnecessary suffering their abilities to engage in risk reduction and loss of life. Nowhere have those harms practices, such as condom use.15 been more fully felt than in Vancouver’s Downtown Eastside (DTES). Before recent From the mid-1980s to the early 2000s, gentrification, the neighbourhood was many women went missing from the DTES. thought to have the lowest per capita In 2007, a serial killer was convicted of income of any urban postal code in Canada. the second-degree murder of six of these A disproportionate number of residents live women,16 but he is believed to have been with disabilities, the effects of intergener- responsible for the deaths of more than ational involvement in the residential school 30. Throughout this period, police actively and child welfare systems, and challenges enforced policies to relocate outdoor sex associated with addiction. workers from residential neighbourhoods into isolated, dimly lit areas where they The DTES community includes a sizable were more vulnerable to violence. population of people, predominantly 13 cis- and transgender women, who The Missing Women Commission exchange sex for money, drugs, shelter, of Inquiry (MWCI) examined police or other commodities. These women are failures to investigate and prosecute the disproportionately Indigenous. Research disappearances of 70 women from the DTES, conducted by the BC Centre for Excellence most of whom were outdoor sex workers. in HIV/AIDS’s AESHA Project has found Commissioner Wally Oppal, QC, found: an alarming prevalence of gender-based violence against sex workers engaged … there is a clear correlation between in survival sex work.14 AESHA has also law enforcement strategies of found that the social, economic and legal displacement and containment of the survival sex trade to under-populated and unsafe areas in the period leading 13 Cisgender denotes a person whose self-identified up to and during the reference period gender conforms with their biological sex at and violence against the vulnerable birth; transgender denotes someone whose self- identified gender differs from their biological sex women. This was an unintentional at birth or does not conform unambiguously with but foreseeable result.17 conventional binary male and female genders.
14 Survival sex work is defined as exchanging sex to supply basic needs such as food or shelter, in 15 K Shannon, V Bright, K Gibson, and MW Tyndall, situations where there are few other options. The “Sexual and drug-related vulnerabilities to HIV phrase has been used by John Lowman in various infection among women engaged in survival sex articles, including “Prostitution Law Reform in work in Vancouver, Canada,” Canadian Journal Canada” (1998), “Violence and the Outlaw Status of of Public Health 98, no. 6 (2007): 465-9. For (Street) Prostitution in Canada” (2000), and other a complete list of AESHA publications, see: publications available at http://mypage.uniserve. http://www.gshi.cfenet.ubc.ca/publications/5. ca/~lowman/. See also: K Shannon, T Kerr, SA Strathdee, J Shoveller, JS Montaner, and MW 16 R. v. Pickton, 2010 SCC 32. Tyndall, “Prevalence and structural correlates of gender based violence among a prospective cohort 17 The Honourable Wally Oppal, QC, Forsaken: The of female sex workers,” BMJ 2009; 339:b2939, doi: Report of the Missing Women Commission of http://dx.doi.org/10.1136/bmj.b2939. Inquiry: Executive Summary, vol. 1 (2012): 110.
PAGE 16 · Pivot Legal Society Despite the at times overwhelming Subcommittee reviewed compelling personal challenges facing this evidence demonstrating the impact community of sex workers, women from of criminalization on sex worker safety, the Downtown Eastside have played finding that “the social and legal a major leadership role in Canada’s framework pertaining to adult prostitution sex workers’ rights movement over in Canada does not effectively prevent the past decade. In the early 2000s, and address prostitution or the 94 sex workers from the Downtown exploitation and abuse occurring in Eastside swore affidavits outlining prostitution, nor does it prevent or the very difficult circumstances of address harms to communities.”20 The their lives as part of Pivot’s Voices for Subcommittee found that the status quo Dignity project.18 The affidavits painted was unacceptable, but ultimately did not a grim picture of how Canada’s criminal recommend reforms to the Criminal Code. laws impacted their ability to perform their work more safely, as well as their relationships with police and other Sex Workers United service providers. These sex workers Against Violence resoundingly called on the government to repeal the harmful criminal laws Society’s Charter related to adult prostitution. Challenge
During this period, the House of The sex workers who took part in the Commons ordered the Standing Voices for Dignity incorporated in 2007 Committee on Justice and Human Rights as a non-profit society, Downtown “to review the solicitation laws in order to Eastside Sex Workers United Against improve the safety of sex-trade workers Violence Society (SWUAV). SWUAV’s and communities overall, and to bylaws stipulate that full members, recommend changes that will reduce who comprise more than 90% of the the exploitation of and violence against organization, must be current or former sex-trade workers.”19 To that end, the sex workers who identify as women and Parliamentary Subcommittee on who have lived or worked in the DTES. Solicitation Laws was formed. In 2005, Throughout its history, the majority of Pivot presented the affidavits collected for SWUAV’s members have been Indigenous, Voices for Dignity to the Subcommittee and all SWUAV members describe having on Solicitation Laws and set up a private experienced violence at some point in meeting for Subcommittee members with their lives. sex workers in the DTES. The Disappointed by the outcome of the Subcommittee on Solicitation Laws,
18 Pivot Legal Society Sex Work Subcommittee, SWUAV retained Pivot as legal counsel Voices for Dignity (Vancouver: Pivot Legal and launched a Charter challenge to Society, 2004), http://www.pivotlegal.org/ voices_for_dignity.
19 Challenge of Change, 2. 20 Challenge of Change, 86.
Pivot Legal Society · Page 17 Canada’s prostitution laws in August severe consequences. Sex workers 2007. The lawsuit alleged that the can face eviction from their homes or prostitution laws prohibited sex workers workspaces, be denied social assistance from taking a range of steps that would benefits, and lose custody of and access significantly improve their safety, such to their children. They can face increased as working indoors, working collectively, discrimination from police, the medical having clear negotiations with clients, and system, and other social programs. They accessing police protection. As a result, can also lose clientele and face retaliation the laws violated sex workers’ rights to from community members because of freedom of expression and association, their involvement in a legal process. For life, liberty, security, and equality.21 some, the revelation may irreparably harm family and personal relationships. The SWUAV legal challenge targeted four Aware of these risks and challenges, provisions of the Criminal Code: SWUAV members decided that they would name the organization as a single • Sections 210 and 211, which prohibited plaintiff in the case, as opposed to being found in, occupying, keeping or naming one or more individuals. transporting a person to a common That decision had unanticipated impacts bawdy house; and on the course of litigation over the next five years and resulted in a significant • The aspects of Section 212 that victory that altered common law prohibited procuring persons over rules to determine who has access the age of 18 to engage in prostitution to Canadian courts. and living on the avails of adult prostitution; and Not long after SWUAV filed its case, • Section 213, which prohibited their counsel received a letter from the communication in public for the government stating its position that purpose of engaging in prostitution.22 SWUAV did not have “standing.” Standing refers to the legal right to bring an action before the courts. It is an important The court system in Canada is a highly aspect of Canadian law, meant to ensure public process with limited privacy that courts do not become overburdened protections or supports for litigants. with marginal or redundant cases and For the members of SWUAV, and for sex that they have the benefit of hearing from workers in general, publicly divulging those most directly affected by the laws information about their work can have or government action in question.23 The law of standing acts as a gatekeeper to the courts, but it must also accord with 21 These rights and freedoms are protected by Sections 2(b), 2(d), 7 and 15 of the Charter. See Appendix 1 for fuller explanations.
22 SWUAV and Kiselbach’s constitutional claim 23 Finlay v Canada (Minister of Finance) (1986), 2 challenged the following specific section of the SCR 607, para 631; Canada (Attorney General) Criminal Code: Sections 210, 211, 212(1)(a), (b), v. Downtown Eastside Sex Workers United (c), (d), (e), (f), (h) and (j) and (3), and 213. Against Violence Society, 2012 SCC 45.
PAGE 18 · Pivot Legal Society access to justice principles so that the reasonable cause of action.24 If the court courts can fulfil their proper role. agreed, the case would come to an end.
Eager to avoid a procedural battle, In 2008, the BC Supreme Court ruled SWUAV’s counsel wrote to the that neither SWUAV nor Kiselbach had government outlining the many standing to challenge the laws.25 The barriers faced by individual members following year, however, the majority in initiating a legal claim. SWUAV’s of the BC Court of Appeal found that claim was emblematic of the significant SWUAV and Kiselbach were entitled restrictions on access to justice to public interest standing given the experienced by marginalized individuals. systemic and broad nature of their Those most heavily impacted by claim. The Court found that it would be criminal laws are often barred from nearly impossible to challenge all the raising violations of their rights in court. provisions individually in the context Despite the explanation of the risks of a criminal defence. Furthermore, and difficulties SWUAV members would the comprehensive nature of the case, face in trying to embark on litigation as which focused on the way the laws as individuals, the government was not a scheme collectively caused harm, willing to change its position. weighed in favour of granting SWUAV public interest standing.26 At that point, Sheryl Kiselbach, an activist, outreach worker, and former The government appealed this decision sex worker joined the litigation as an to Canada’s highest court, which had individual applicant directly affected by the final word on whether the test for the laws. Kiselbach had done sex work establishing public interest standing in in a variety of circumstances and venues Canada27 should be altered. By 2012, for 30 years, including on the streets of after a five-year legal battle, it was clear Vancouver. Despite Kiselbach’s history to the applicants and their counsel that and experiences of violence, and her the law on standing created substantial criminal convictions for prostitution- barriers for public interest litigants. related offences, the government took the position that Kiselbach was not affected by the laws at issue, because she 24 A cause of action is the combination of was not currently engaged in sex work facts that would allow the court to find one and did not have outstanding charges. party had a valid legal claim. The government filed a motion to strike 25 Downtown Eastside Sex Workers United the case on the basis that the applicants Against Violence Society v. Attorney General (Canada), 2008 BCSC 1726. lacked standing, and in the alternative, that the pleadings did not disclose a 26 Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General), 2010 BCCA 439, paras 58-62, 66.
27 Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.
Pivot Legal Society · Page 19 Counsel for SWUAV and Kiselbach multi-faceted sex industry.28 The three were joined by interveners from across applicants in the Ontario case, Terri Jean Canada representing social justice Bedford, Amy Lebovitch, and Valerie organizations, who argued that the Scott, represent some of the diversity arbitrary preference for litigation by that exists in the sex industry. individuals in cases of broad systemic impact impeded access to justice. Terri Jean Bedford has worked as a sex worker and professional dominatrix, Nine months later, SWUAV and Kiselbach and formerly operated a sadism and received the SCC’s judgment. Not masochism dungeon. In the 1990s, she only had they been granted public was convicted of operating a bawdy interest standing, the SCC had also house. Amy Lebovitch has done sex reformulated the standing test, greatly work for over 18 years on the street, reducing the barriers for marginalized independently in indoor locations, and litigants bringing forward public interest with an agency. She has also studied claims. However, because of the 5-year criminology, psychology, and social procedural delay, SWUAV had still not work at a post-secondary level, and is a had the opportunity to argue the main published author and activist with Sex issue in court: namely, the harms caused Professionals of Canada (SPOC). Valerie by Canada’s prostitution laws Scott entered the sex trade when she was 24 and has worked on the street, as an independent doing indoor and Canada (Attorney escort work, and in massage parlours. General) v. Bedford, Scott became an activist in 1985 when she joined SPOC,29 where Lebovitch and Scott she also served as the Executive Director and the Legal Coordinator. At the same time as SWUAV and Kiselbach’s case was before the courts The Bedford applicants challenged on the issue of standing, another group three of the same provisions targeted of sex workers in Ontario decided to in SWUAV and Kiselbach’s litigation: the take aim at Canada’s prostitution laws and launched their own challenge, now known as Bedford. 28 Cecelia Benoit and Alison Millar, Dispelling myths and understanding realities: Street-based sex work is among the most working conditions, health status, and exiting experiences of sex workers visible and dangerous forms of sex work, (Victoria: Prostitutes Empowerment, and has historically drawn the majority Education and Resource Society, 2001), http://web.uvic. ca/~cbenoit/papers/ of police attention and criminal charges DispMyths.pdf; Challenge of Change, 5; in Canada. Despite this, it is estimated Bedford v Canada, 2012 ONSC 4262, that the street level sex trade comprises para 119 [Bedford ONSC]. less than 20% of Canada’s complex and 29 Known as the Canadian Organization for the Rights of Prostitutes at the time.
PAGE 20 · Pivot Legal Society bans on communicating, operating a of violence, these sections have bawdy house, and living on the avails of the effect of putting the larger prostitution.30 In September 2010, Justice society at risk on matters of public Himel of the Ontario Superior Court health and safety. The harm struck down all three provisions, stating: suffered by prostitutes carries with it a great cost to families, law The living on the avails provision enforcement and communities, targets the exploitation of and impacts upon the well-being of prostitutes, prohibiting others the larger society. In my view, the from gaining financially from effects of the communicating prostitution. This objective is to be provision are grossly balanced against my conclusion disproportionate to the goal of that, by preventing prostitutes combating social nuisance.32 from legally hiring bodyguards, drivers or other security staff, the Justice Himel ruled that because the provision places prostitutes at danger faced by prostitutes greatly greater risk of harm and may make outweighed any harm faced by other it more likely that a prostitute members of the public, the declaration of will be exploited [by a pimp]. … invalidity should take effect immediately; The provision represents a severe but she provided a 30-day period in violation of the applicants’ Charter which parties could make submissions rights by threatening their security on the possible consequences of an 33 of the person. The law presents immediate declaration. them with a perverse choice: the applicants can safeguard their The government appealed the decision. security, but only at the expense SWUAV sought the Ontario Court of of another’s liberty. In my view, the Appeal’s permission to intervene in living on the avails of prostitution the case, jointly with Pivot and PACE, provision is, in effect, grossly an organization that promotes safer disproportionate to its objective.31 working conditions for sex workers, and Pivot. An intervention is a process … [The communicating and through which an individual or a group bawdy-house provisions] endanger who is not a party to litigation can play prostitutes while providing little a role in the hearing of the case. The benefit to communities. In fact, by rationale for allowing interventions is putting prostitutes at greater risk that the outcome of a particular case may affect the rights of people beyond the parties to the litigation. The SWUAV, 30 SWUAV and Kiselbach also challenged the PACE, and Pivot coalition argued that offence of procuring under Section 212(1) and 212(3) of the Criminal Code, with the exception of Sections 212(1)(g) and (i), whereas the Bedford applicants did not. 32 Bedford ONSC, para. 434.
31 Bedford ONSC, paras. 429-431. 33 Bedford ONSC, para. 539.
Pivot Legal Society · Page 21 street-based sex workers in the DTES individually and together, because had a unique perspective to bring, given they imposed dangerous conditions the history of tragic violence and the on sex work, preventing sex workers impacts of rigorous enforcement of from working in safe conditions and the prostitution laws there. They were from legally taking steps to protect granted leave to intervene.34 themselves from risk.
• Section 210 (keeping or being found The Ontario Court of Appeal agreed that in a common bawdy house): The SCC the bawdy house and living on the avails found that the bawdy house law’s laws were unconstitutional as written, impacts on sex workers were grossly but the Court reversed Justice Himel’s disproportionate to its aim of deterring decision on the communicating law. community disruption. This law The government appealed the decision prevented sex workers from working invalidating the two laws to the SCC, and at a fixed indoor location, which was the Bedford applicants cross-appealed shown in evidence to be safer than the ruling on the communicating law, working on the street or meeting with the SWUAV, PACE, and Pivot clients at different locations, such as Coalition again intervening. their residences or hotel rooms. The SCC found that when sex workers did The Bedford Decision “in-calls”, offering services at premises and Its Implications over which they had a measure of control, they were more able to establish a regular clientele roster, On December 20, 2013, the Supreme employ preventive health and safer sex Court of Canada rendered its landmark measures, work together with other unanimous decision in Bedford, striking staff, and use security protocols such down all three challenged provisions as audio room monitoring. The SCC of the Criminal Code. The SCC found therefore concluded that prohibiting 35 that these three provisions violated in-calls increased risk to sex workers. sex workers’ rights to security of the While the SCC did not strike down person under Section 7 of the Charter, the bawdy house provision in its entirety, because some aspects dealt with gambling and other activities that are still criminalized, the word 34 In general, it is within the discretion of “prostitution” was removed from the the court to allow or refuse an application definition of a bawdy house in s. 197 to intervene. The basic test for when the court should grant leave to intervene is that of the Criminal Code.36 the person or organization has a genuine interest in the matter under review by the court, that the court believes the intervener will make submissions that are pertinent and useful to the proceedings and that those submissions will differ from those of the 35 Bedford SCC, paras. 61-65. parties to the appeal, without expanding the issues under review in the case. 36 Bedford SCC, para 164.
PAGE 22 · Pivot Legal Society • Section 212(1)(j) (living on the avails that the provisions were therefore of prostitution): The SCC found that unconstitutional and void.40 Chief Justice this part of the procuring law was McLachlin, writing for the unanimous unconstitutionally overbroad because court, declared: it did not distinguish between parasitic and beneficial relationships: [T]he applicants argue that “The law punishes everyone who lives the prohibitions on bawdy- on the avails of prostitution without houses, living on the avails of distinguishing between those who prostitution, and communicating exploit prostitutes (such as controlling in public for the purposes of and abusive pimps) and those who prostitution, heighten the risks could increase the safety and security they face in prostitution — itself of prostitutes (for example, legitimate a legal activity. The application drivers, managers, or bodyguards)”.37 judge found that the evidence supported this proposition and • Section 213(1)(c) (communicating in the Court of Appeal agreed. public for the purpose of prostitution): The SCC found that the impacts of the For reasons set out below, prohibition on public communicating I am of the same view. The were also grossly disproportionate prohibitions at issue do not to its aim of controlling public merely impose conditions on nuisance.38 The law interfered with how prostitutes operate. They sex workers’ abilities to screen go a critical step further, by prospective clients for intoxication imposing dangerous conditions or propensity to violence and to set on prostitution; they prevent terms for transactions (including people engaged in a risky — regarding condom use), actions that but legal — activity from taking could reduce the risks sex workers steps to protect themselves 41 face. Enforcement of this law also from the risks. displaced sex workers from familiar areas to more isolated areas, thereby The declaration of invalidity of the increasing their vulnerability.39 laws did not, however, take effect immediately. The Court gave the The SCC determined that the legislative government one year to contemplate objectives of all three laws were far whether new laws should be enacted, outweighed by the negative impacts and if so, what form they should take. of these offences on sex workers’ safety and security and concluded
37 Bedford SCC, para. 142.
38 Bedford SCC, para. 159. 40 Bedford SCC, para. 164.
39 Bedford SCC, paras. 68-72. 41 Bedford SCC, para 60.
Pivot Legal Society · Page 23 They explain that the dignity and safety of Vancouver Police sex workers is a VPD priority; enforcement of the law in instances of sex between Department’s Sex consenting adults is not. The Guidelines set out that VPD officers will use their Work Enforcement discretion to focus on enforcing the laws primarily in cases where there are reports Guidelines of violence, exploitation, or involvement of underage persons or organized crime. Even before the Bedford decision and The Guidelines are assisting police to build the release of the findings from the trusting relationships with sex workers Missing Women Commission of Inquiry, and community organizations and could the Vancouver Police Department (VPD) serve as a model for police forces embarked on a process together with sex in other areas of the country. worker and community organizations, including WISH, PACE, and Pivot, to draft new guidelines for how to enforce sex work laws. The Sex Work Enforcement Guidelines42 were released in 2013. ...the dignity
42 Vancouver Police Department, Sex Work and safety Enforcement Guidelines, Adopted January 2013, http://vancouver.ca/police/assets/pdf/reports- policies/sex-enforcement-guidelines.pdf. of sex workers is a VPD Watch the video: www.youtube.com/watch?v=-gKafib7TN4 priority; enforcement of the law in instances of sex between consenting adults is not.
PAGE 24 · Pivot Legal Society Developing the PCEPA – A Back to the Predetermined Outcome Future: The Shortly after the Bedford decision was released, then Justice Minister Protection of Peter McKay expressed his support for the Nordic model of asymmetrical Communities criminalization.44 One month later, on February 17, 2014, the federal and Exploited government announced that, for a 30- day period, any interested member of the Persons Act public could complete an online survey providing comment on options for new sex work laws.45 The online format was inaccessible to many marginalized sex In the face of the SCC’s unanimous workers, and the closed-ended questions decision in Bedford, the federal directed respondents towards a limited government, then a Conservative number of responses, leading many majority, was left with two choices sex workers and allies to believe that for regulating adult sex work. The a decision about the content of new first option was to simply remove the legislation had already been made. sections that had been found to be While a number of sex worker-serving unconstitutional from the Criminal organizations used the portal to make Code, which would have left sex work online submissions, there were concerns largely decriminalized in Canada, a that the survey gave equal weight to the solution similar to that adopted by the opinions those without knowledge or government when Canada’s abortion first-hand experience in sex work.46 laws were struck down in the 1980s.43 The second option was to introduce new criminal laws that comply with 44 Alison Crawford, “Peter MacKay faces the Charter. Sex workers, public health balancing act with justice agenda, court experts, human rights groups, and rules,” CBC, January 26, 2014, http://www. cbc.ca/news/politics/peter-mackay-faces- allied organizations argued for the balancing-act-with-justice-agenda-court- first approach. However, the federal rulings-1.2511220 government immediately committed 45 Department of Justice Canada, Research and to drafting new laws. Statistics Division, Online Public Consultation on Prostitution-Related Offences in Canada: Final Results (Ottawa: Queen’s Printer, 2014), http://www.justice.gc.ca/eng/rp-pr/other- autre/rr14_09/rr14_09.pdf.
46 Erika Tucker, “Canadians split on sex worker policy, survey says,” Global News, June 2, 2014, http://globalnews.ca/news/1368274/ 43 See R v Morgentaler, [1988] 1 SCR 30 buying-sex-should-be-illegal-but-selling-it- [Morgentaler]. shouldnt-be-an-offence-survey/.
Pivot Legal Society · Page 25 On June 4, 2014, Minister MacKay need to end human trafficking as a introduced the proposed legislation, Bill reason for adopting the proposed C-36: The Protection of Communities legislation. According to Bob Dechert, and Exploited Persons Act (PCEPA).47 a Conservative MP who spoke to the As expected, among the changes it bill at second reading, “Prostitution is made to the Criminal Code, the new bill an inherently exploitative activity that outlawed paying for sexual services. The always poses a risk of violence.”49 federal government stated that the legislation “makes prostitution between Opposition parties were harshly critical adults a de facto illegal activity for the of the bill, although they were not 48 first time in Canada’s history,” as always unanimous even within their parties could no longer exchange sex for parties about their concerns. Many money without at least one of the Liberal MPs said that they did not individuals involved committing a crime. support decriminalization of sex work, Additionally, Bill C-36 amended and but denounced the bill as infringing the reworked the Criminal Code provisions Charter rights of sex workers in ways that had been struck down in Bedford, very similar to the laws that had been adding new criminal offences pertaining struck down by the SCC. NDP MPs also to advertising sexual services. While expressed a range of personal opinions the PCEPA borrows heavily from the about sex work, but condemned the Nordic model of asymmetrical bill as unconstitutional and advocated criminalization, it retains provisions for a harm reduction approach. Some that specifically target some of the MPs suggested that empowering sex most vulnerable street-based sex workers was a more effective way of workers, an issue that is discussed assisting them to get out of dangerous in more detail in the next chapter. situations. The Green Party explicitly recommended that Canada adopt a The bill was the subject of heated model similar to that of New Zealand, debate at second reading, which decriminalizing all aspects of adult was limited by time allocation. sex work, including purchasing sexual Conservative MPs supported the bill services, as the best way to reduce as an effective way to end exploitation stigma experienced by sex workers.50 of socio-economically vulnerable groups. They explicitly discussed the After second reading, two special committees heard evidence from a range of individuals identified as 47 Minister MacKay’s speech on second reading may be found here: https://openparliament. ca/debates/2014/6/11/peter-mackay-4/. 49 House of Commons, 2nd reading, June 12, 2014, 48 Lynne Casavant and Dominique https://openparliament.ca/debates/2014/6/16/ Valiquet, Legislative Summary of Bill procedural-3/ [2nd reading]. C-36 (Ottawa: Library of Parliament, 2014), http://www.lop.parl.gc.ca/About/ 50 Elizabeth May, comments at second Parliament/LegislativeSummaries/bills_ reading of Bill C-36,https://openparliament. ls.asp?ls=c36&Parl=41&Ses=2. ca/bills/41-2/C-36/?page=6.
PAGE 26 · Pivot Legal Society “experts” about the proposed country rallied publicly and circulated legislation. The Parliamentary Standing petitions against the bill, asserting Committee For Justice and Human that Bill C-36 would leave sex workers Rights sat for several days in July 2014, more vulnerable to abuse than past hearing from more than 60 witnesses.51 legislation.54 Despite the legislation’s Further Senate Committee hearings avowed aim of protecting the took place in September 2014. vulnerable, Senator Donald Plett said explicitly, “We don’t want to make life Although both these committees safe for prostitutes. We want to do 55 heard from sex workers, including away with prostitution.” from the applicants in the Bedford case, many sex workers who appeared Sex workers, allied organizations, said later that they did not feel they lawyers, and public health experts took were taken seriously or consulted in a every opportunity to speak out against meaningful way, particularly because the PCEPA.56 Despite widespread questions from Conservative members concerns about both the safety were adversarial,52 and the chairs did ramifications and the constitutionality not always control spectators in the of the PCEPA, on December 6, 2014, gallery, many of whom heckled and slightly less than a year after the jeered during presentations.53 The historic SCC decision in Bedford, committees also heard from academics the PCEPA became law. who identified as “radical feminists” and from representatives of Christian organizations, both in favour of legal 54 See, for example: Selena Ross, “Sex worker bill built on ‘false consultation’,” prohibitions on sex work. Throughout Chronicle Herald, June 14, 2014, http:// this period, sex workers across the thechronicleherald.ca/metro/1215019-sex- worker-bill-built-on-false-consultation; Charlie Smith, “Bill C-36 brings out Vancouver protesters who oppose Conservative 51 Andrew Thomson, “Committee holds crackdown on sale of sex,” The Georgia summer hearings on C-36,” CPAC, July 3, Straight, June 14, 2014, http://www. 2014. To watch videos of the hearings, see: straight.com/news/87581/bill-c-36-brings- http://www.cpac.ca/en/highlight/committee- out-vancouver-protesters-who-oppose- holds-summer-hearings-on-c-36/ conservative-crackdown-sale-sex; “Sex worker supporters dance against new 52 Kady O’Malley, “Prostitution bill critics prostitution bill,” CBC News, June 14, 2014, treated as hostile witnesses at committee,” http://www.cbc.ca/news/canada/montreal/ CBC, July 16, 2014, http://www.cbc.ca/ sex-workersupporters-dance-against-new- news/politics/prostitution-bill-critics-treated- prostitution-bill-1.2675934. as-hostile-witnesses-at-committee-1.2704434 55 Senate Hearings, November 12, 53 Kerry Porth, “Justice Committee on 2014, https://www.youtube.com/ Bill C-36 ignored sex workers,” Pivot watch?v=q18rMJ01YKw Legal Society, July 14, 2014, http:// www.pivotlegal.org/justice_committee_ 56 “Open letter: 300 researchers call for ignored_sex_workers; additional personal decriminalization of sex work in Canada,” communications with Kerry Porth (who The Georgia Straight, March 27, 2014, testified on behalf of Pivot Legal Society http://www.straight.com/news/73741/open- along with lawyer Elin Sigurdson), August letter-300-researchers-call-decriminalization- 18, 2016. sex-work-canada
Pivot Legal Society · Page 27 commissioned Vista Analysis to evaluate Does figures after the purchasing ban, but without the same comprehensive Criminalizing mapping Fafo had employed. The study used projections to arrive at a mean of 2,482 people selling sex in 2014, a Clients Reduce potential reduction of 20 to 25%. Vista estimated that 1,517 sex workers (61%) the Number of operated in indoor locations, while 965 (37%) were street-based. These findings have been questioned by academics and Sex Workers? social service providers working in the field,57 with some suggesting that the The claim by proponents of the Nordic apparent reduction is simply a result of model that asymmetrical criminalization reduced visibility. Technological advances reduces demand for sexual services have changed how and where sex is and therefore reduces the number sold in Norway and around the world. of women doing sex work is a matter Evidence from Sweden also suggests that of debate. Securing reliable statistics an immediate decrease in street-based on the make-up of a group of people sex work there was followed by increased who are often mobile and dispersed indoor sex work, in part as a result of the and who are highly stigmatized growth of internet communications.58 and fearful of authority is difficult. Criminalization itself, whether of The eradication of sex work has yet sellers, buyers, third parties or all three, complicates attempts to get a clear
picture of sex industry demographics. 57 The authors of the 2008 baseline study As a result, reliable data is scarce. publicly stated that they elected not to bid for the role carrying out the evaluation because they considered that “the mandate and funding was insufficient for In Norway, immediately prior to the sound research”. They pointed to “too introduction of the ban on buying many uncertainties in the data produced sex, the Norwegian government by the Vista evaluation on both outdoor and indoor markets”, which the Vista commissioned a detailed study carried report authors themselves acknowledge out by the Institute for Labour and in the body of the report, but do not fully Social Research (Fafo). Fafo estimated elaborate on in the overall conclusions. in 2008 that around 3,000 people sold 58 Lansstyrelson Stockholm, Summary: sex annually, with just under half (45%) The Extent and Development of Prostitution in Sweden (2014) at 2, operating from the street. http://www.lansstyrelsen.se/stockholm/ SiteCollectionDocuments/Sv/manniskaoch- samhalle/jamstalldhet/prostitution/ In 2014, the Norwegian government SUMMARY-Prostitutionkartlaggning-2014.pdf.
PAGE 28 · Pivot Legal Society to be achieved in any of the countries for sex workers to implement if the using asymmetrical criminalization. customer base was weakened. Unsubstantiated benefits of decreased demand need to be carefully weighed By contrast, New Zealand, which against real, documented harms decriminalized sex work in 2003, did experienced by not see any significant current sex workers. increase or decrease in the number of sex A number of the “The eradication workers as a result Norwegian social of decriminalization, service providers of sex work according to a interviewed by government review Amnesty International has yet to be undertaken five years after suggested that the achieved in any the Prostitution Reform purchasing ban had Act, 2003 (PRA) was discouraged some of the countries passed.61 The committee men from buying using asymmetrical mandated under the law sex, resulting in to conduct the review the emergence of a criminalization. reported in 2008 that, “buyer’s market.”59 despite slower progress Prices for sexual in eliminating exploitative services in Norway ” employment conditions, are reportedly lower than before the ban on purchasing. Norwegian social On the whole, the PRA has service providers have expressed been effective in achieving its concerns that “customers can to a purpose, and the Committee greater extent set the agenda for which is confident that the vast sexual services they want to buy, price, majority of people involved place for performing the sex act and in the sex industry are better use of condoms. This results in greater off under the PRA than 62 vulnerability for sex workers.”60 This they were previously. trend was predicted by the authors of the 2008 Fafo baseline study, who anticipated that risk-reduction strategies would become more difficult
61 For further research from New Zealand, see: New Zealand Parliament, Prostitution Law 59 Amnesty International, Norway: The Reform in New Zealand, (NZ: Parliamentary Human Cost of Crushing the Market, Library, 2012). https://www.parliament.nz/ POL 30/4062/2016, May 26, 2016, 65, resource/en-NZ/00PLSocRP12051/ https://www.amnesty.org/en/documents/ c62a00e57bd36e84aed237e357af2b7381a eur36/4034/2016/en/ [The Human Cost of 39f7e. [Prostitution Law Reform in New Crushing the Market]. Zealand].
60 The Human Cost of Crushing the Market, 66. 62 Prostitution law reform in New Zealand, 5
Pivot Legal Society · Page 29 and in combination, undermine the human rights of sex workers and are Broken Laws: therefore unconstitutional. In each of the following sections, we investigate The PCEPA what the Criminal Code provisions say, what effects they are having on how sex in Practice workers do business, and what Charter rights they violate. This is a complex endeavour, since the provisions of the The PCEPA regime effectively PCEPA work together, and a single criminalizes every aspect of sex work provision can result in several Charter except the acts of selling one’s own violations at once. In order to streamline sexual services and theoretically discussion, the legal tests that courts of independently advertising those consider and apply in evaluating Charter services. There are now five broad breaches appear separately in Appendix categories of sex work-related offences 1 at the end of this document. in Canada’s Criminal Code: A Note on Data & Evidence • paying for sexual services
• communicating to exchange By the time the SWUAV and Bedford sexual services Charter challenges were launched, sex workers, advocates, and academics • profiting as a third party from had amassed decades of evidence someone else’s sexual services demonstrating how Canada’s prostitution laws impacted sex worker • procuring (hiring or inducing) safety. The evidentiary record for the someone to provide sexual services Bedford case alone amounted to more than 25,000 pages. We rely on some of • third party advertising to provide this evidence as well as other research sexual services63 conducted between 2008 and 2013, particularly as it pertains to stigma and In this chapter, we examine the impacts poor relations between sex workers and constitutionality of the criminal and police. laws from the perspective of sex workers. Our analysis of the available Because the PCEPA is relatively new, evidence suggests that the major despite its similarities to previous offences in the PCEPA, individually laws, the full picture of how it is shaping sex workers’ experiences is just starting to emerge. Enforcement 63 It is important to note that for most of the offences under the PCEPA, there are has been uneven across Canada. With specific provisions pertaining to acts few prosecutions to date, there is involving people under the age of 18. The analysis below looks only at the Criminal almost no judicial interpretation to Code provisions relating to adults. draw from. As it is too soon for many
PAGE 30 · Pivot Legal Society of the ongoing quantitative studies to of sex from consenting adults publish results, much of our information or the organization of sex work comes from sex workers’ accounts of (such as prohibitions on renting their experiences, as told to service premises for sex work) a criminal organizations and in qualitative offence. Such laws force sex academic research. This chapter also workers to operate covertly in references the substantial body of ways that compromise their research from Nordic countries that safety, prohibit actions that sex employ asymmetrical criminalization workers take to maximize their to inform analysis of our Criminal Code safety, and serve to deny sex provisions. In particular, we rely on workers support or protection rigorous research and consultations from government officials. They conducted by Amnesty International therefore undermine a range in 2015 during the development of its of sex workers’ human rights, global organizational position on sex including their rights to security work, which favours decriminalization of person, housing and health.65 as the best way to protect sex workers’ human rights.64 The Amnesty policy Ideological Underpinnings – brief explains, the PCEPA’s Preamble Amnesty International calls The Preamble to the PCEPA appears in for the decriminalization of all the bills that were before the House of aspects of adult consensual sex Commons and in the version of the law work due to the foreseeable that received royal assent, but it is not barriers that criminalization part of the Criminal Code. Nonetheless, creates to the realization of the the Preamble is important because it human rights of sex workers. … sets the tone and provides the law’s Amnesty International considers objectives. It is what the government that to protect the rights of sex would use to justify alleged rights workers, it is necessary not only infringements and one of the factors to repeal laws which criminalize that a court would look to in the the sale of sex, but also to repeal Section 1 phase of a constitutional those which make the buying assessment, when the merit of the law’s aims are measured against 66 64 Amnesty International, Policy on State its effects. Obligations to Respect, Protect and Fulfil the Rights of Sex Workers, POL 30/4062/2016, May 26, 2016 [Policy on State Obligations]; Amnesty International 65 Policy on State Obligations, 2. conducted primary research in four jurisdictions (Norway, Hong Kong, Papua 66 Department of Justice Canada, Technical New Guinea, and Argentina), with different Paper: Bill C-36, Protection of Communities legal regimes, and consulted extensively and Exploited Persons Act, March 2015 update with sex workers and with international (Ottawa: Department of Justice, 2015), http:// experts in a broad range of fields, before www.justice.gc.ca/eng/rp-pr/otherautre/ arriving at its position. protect/p1.html [Technical Paper].
Pivot Legal Society · Page 31 Along with new Criminal Code when governments argued that they provisions, Bill C-36 introduced a new targeted other objectives.69 The living on rationale for laws regulating sex work. the avails provision was conceived of as According to a Department of Justice protecting women particularly vulnerable technical paper that accompanied to violence from control by pimps, Bill C-36, the new legislation “reflects characterized as a “cruel and pervasive a significant paradigm shift away social evil” and “abusive and exploitative from the treatment of prostitution malevolence.”70 It is only with the as ‘nuisance,’ as found by the PCEPA that the government attempted Supreme Court of Canada in Bedford, to consolidate these provisions under toward treatment of prostitution as a new heading in the Criminal Code, a form of sexual exploitation that Commodification of Sexual Activity. disproportionately and negatively impacts on women and girls.”67 The reasons given in the Preamble for the law include: It should be noted that in a Section 1 analysis, the government must defend • concerns that “exploitation … is the specific objective of the challenged inherent in prostitution,” as is the risk provision, not the objective of the law as of violence; a whole. Historically, different aspects • recognition of the “social harm caused of Canada’s sex work laws developed by the objectification of the human separately and for different purposes body and the commodification of and were located in different parts of the sexual activity;” Criminal Code. While arguably moralistic in tone, they were not united by a • desire to protect human dignity and cohesive purpose. Previous challenges equality, particularly with respect to to the laws on communicating and women and children; keeping of bawdy houses established that these provisions aimed to address • desire to denounce and prohibit the nuisance68 in communities – interpreted purchase of sexual services because as disruption on public streets – even the availability of these services creates a demand for them;
67 Canada, Department of Justice, Technical • desire to “denounce and prohibit Paper: Bill C-36, Protection of Communities the procurement of persons for and Exploited Persons Act, last modified March 10, 2015 [Technical Paper], http://www.justice. gc.ca/eng/rp-pr/other-autre/protect/p1.html 69 For example, in the [Prostitution Reference], 68 Regulation of morality has been an aspect the SCC rejected the argument that the of the laws noted in previous decisions, laws were in any way intended to combat and some interveners in the Bedford case, exploitation or degradation of women. See notably the Christian Legal Fellowship, Reference re ss. 193 and 195(1.1)(c) of the Catholic Civil Rights League, and Real Women Criminal Code (Man.), [1990] 1 SCR 1123 of Canada, argued that the laws regulate an [Prostitution Reference]. immoral practice; however, the SCC made no mention of morality in its decision. 70 R v Downey, [1992] 2 SCR 10. [Downey]
PAGE 32 · Pivot Legal Society the purpose of prostitution and the women have always been the majority of development of economic interests in the those doing sex work, although a significant exploitation of the prostitution of others portion of sex workers are men. Advocates as well as the commercialization and for asymmetrical criminalization therefore institutionalization of prostitution;” interpret sex work as an expression of men’s power over women and take the position • the desire to encourage sex workers that it symbolizes male sexual access to to report violence and to stop selling female bodies. They assert that sex work sexual services; and is inherently violent, resulting in physical, psychological, and emotional harm to • the intent to protect communities those who engage in it.73 They believe that from the “harms associated with the exchange of money for sex invalidates prostitution.”71 consent. Some go so far as to call sex work (“prostitution”) a form of rape. The PCEPA’s new legislative purpose contrasts noticeably with the pre-Bedford Many sex workers vehemently object objectives, which the SCC found insufficient to this characterization and its denial of to justify the harms they caused for sex their agency as not reflective of their own workers. However, if forced to defend the experiences. They view sex work as a form PCEPA in court, it would not be enough of labour. They contend that treating all for the government to simply declare its exchanges of sex for compensation as rape reliance on these objectives. Evidence denies sex workers their bodily autonomy, would have to be produced to “demonstrably because it depicts sex workers as unable to justify” that the law is actually capable of give or, significantly, to withdraw consent. delivering on its objectives. Many leading academics who study sex work also argue that harms cannot be Does the PCEPA Promote generalized as inherent to the broad range Equality? of activities that we identify as sex work.74
Both supporters and opponents of the PCEPA have grounded their positions 73 See, for example, the website Prostitution in arguments for equality. Sex work Research and Education, which provides a variety of anti-prostitution resources: http:// prohibitionists – and the law’s drafters – prostitutionresearch.com/ claim that the PCEPA’s aim is to enhance women’s equality by eliminating a harmful, 74 Cecelia Benoit and Leah Shumka, Sex Work in Canada (2015), http://www. 72 discriminatory practice. Historically, understandingsexwork.com/sites/default/files/ uploads/2015%2005%2007%20Benoit%20 %26%20Shumka%20Sex%20Work%20 in%20Canada_2.pdf [Benoit and Shumka]; 71 The Protection of Communities and Exploited Chris Bruckert and Tuulia Law, “Beyond Pimps, Persons Act, SC 2014, c 25. Procurers, and Parasites: mapping third parties in the incall/outcall sex industry,” Rethinking 72 More cynical commentators might believe Management in the Adult and Sex Industry Project that the Preamble’s sweeping aims are in (Ottawa: Social Sciences and Research Council part a tactical maneuver to preclude another of Canada, 2013), http://www.powerottawa.ca/ constitutional challenge. ManagementResearch.pdf [Bruckert and Law].
Pivot Legal Society · Page 33 identity and sexuality and experiencing Not All others’ appreciation for them, sometimes for the first time.76 Sex work may also be more culturally accepted Sex Workers and prevalent in these communities. Recent research conducted in Vancouver Are Women found that at least one sixth and up to 25% of The focus on sex interviewees, all self- work as a symptom of identified MSM, had women’s inequality & sold sex at some time 77 sexual availability during their lifetimes. erases the Acknowledging approximately 25% of approximately and exploring the sex workers in Canada experiences of people who do not identify 25% selling or trading sex who as women – men who of sex workers are not cisgender women have sex with men in Canada do not may help to expand (MSM), men who have identify as women our understanding of sex with women, and sex work and undo folks who are the perception that it trans, two spirit, is inherently a form of or who identify gender exploitation. as gender non- binary.75
Selling sex may resonate differently or 76 Premela Matthen, Tara Lyons, Matthew have different significance outside of the Taylor, James Jennex, Solanna Anderson, cisgender, heterosexual framework often Jody Jollimore, Kate Shannon, “‘I Walked into the Industry for Survival presumed in discussions of sex work. and Came Out of a Closet,’ How Gender For people who are queer, transgender and Sexual Identities Shape Sex Work or gender non-binary or non-conforming, Experiences among Men, Two Spirit, and Trans People in Vancouver,” Gender sex work may be both a form of income and Sexual Health Initiative (2015), doi: and a way of exploring their gender 10.1177/1097184X16664951.
77 Elena Argento Matthew Taylor, Jody Jollimore, Chrissy Taylor, James Jennex, Andrea Krusi, Kate Shannon, “The Loss 75 Benoit and Shumka; Health Initiative for of Boystown and Transition to Online Sex Men, Sex Work Law Reform: Implications Work: Strategies and Barriers to Increase for Male Sex Workers in Vancouver and Safety Among Men Sex Workers and Clients Beyond, October 2016, http://checkhimout. of Men,” Gender and Sexual Health Initiative ca/wp-content/uploads/2013/07/HIM- (2015), doi. 10.1177/1557988316655785 Position-Paper-Sex-Work-Law-Reform-2.pdf [The Loss of Boystown]; [Implications for [Implications for Male Sex Workers]. Male Sex Workers].
PAGE 34 · Pivot Legal Society A recent qualitative study of sex Sex workers and human rights advocates workers across Canada that spanned say that rather than promoting equality, previous and current sex work laws the PCEPA instils and reinforces stigma found that the rates at which indoor and disregard for sex workers. It cuts sex workers experienced violence had them off from the legal protections much more to do with pre-existing and rights that should be accessible structural inequities they experienced, to everyone in Canada.80 Because our such as poverty, racism, and mental society continues to view those who illness, than engagement in sex work. have multiple sexual partners, especially Although many study participants women, with disdain, sex workers are reported having conflicts with clients perceived as deviating from gender or experiencing theft, non-payment, norms. This perception of sex workers as or client refusal to wear a condom, deviants, and therefore literal outlaws, the majority (68%) did not experience ultimately results in denial of the legal physical or sexual violence in their protection owed them under Section work.78 Other research conducted with 15 of the Charter, including the right to both sex workers and clients suggests equal treatment under and equal benefit that among indoor workers, sex of the law when they are victims of workers are more likely to be perceived crime, as described in more detail below. as holding power and control during a Apart from their common engagement date than clients.79 in engaging in sex for compensation, the single factor that binds sex workers together as a community is their 78 Tamara O’Doherty, “Victimization in experience of stigma, and with it, the Canadian Off-street Sex Industry” discrimination. (Doctoral Dissertation, Simon Fraser University School of Criminology, 2015), 276 [O’Doherty]. The author also notes, Status as a sex worker has never been “Various forms of privilege insulate some 81 individuals from vulnerability, which in turn recognized as an “analogous ground” insulates some sex workers from violence.” of discrimination under Section 15, (160) Participants’ average self-reported although given the persistence of income in this study was estimated to be $68,000 per year and 87% were born in stigma, which follows sex workers Canada (274).
79 Raven R. Bowen, Vicky Bungay and Catherine Zangger, Making SPACES: 80 See Appendix 2 for examples of laws of Advancing Recommendations from the general application that should apply in Off-Street Sex Industry in Vancouver, 2015, situations of violence and exploitation. www.spacesstudy.com [Making SPACES]; Chris Atchison, Dalia Vukmirovich and 81 Section 15 of the Charter guarantees Patrick Burnett, “Executive Summary of equality of everyone not only on the the Preliminary Findings for Team Grant grounds listed (race, national or ethnic Project 4 – Sex, Safety and Security: origin, colour, religion, sex, age or mental or A Study of the Experiences of People physical disability, which are often referred who Pay for Sex in Canada”, Canadian to as “enumerated grounds”), but also on Institutes of Health Research, June 2015, grounds that are shown in legal argument http://www.sexsafetysecurity.com/docs/ to be similar, such as citizenship or sexual executive_summary_report_full-sample_1_ orientation. These are usually referred to as june_2015.pdf. “analogous grounds.” See Appendix 1.
Pivot Legal Society · Page 35 even when they engage in other forms experience intersectional discrimination, of work,82 a strong case can be made but it is likely all sex workers would identify that it should be. Many of those who “whore stigma” as a significant issue in their engage in sex work do it precisely lives, with the most serious impacts falling because of structural disadvantages on those who are already marginalized. that have excluded them from or made With the very premises upon which the it more difficult to keep other work, PCEPA was constructed so at odds with sex leaving them without the experience or workers’ realities, it is not surprising that employment history needed to compete the law increases discrimination rather than in the job market. Gender is an obvious promoting equality. contributor to employment exclusion, and the overrepresentation of women in sex The Labaye Case: work is a symptom of that. Sex work is Jurisprudence on Sexuality, also one of the few jobs in which women consistently earn more than men do.83 Criminality, & Harm For those who provide care for other When courts determine cases concerning family members, sex work also offers issues of sex and sexuality, they must put more flexible hours than many other aside attitudes born out of personal types of employment. experiences, religious beliefs, and moral views, and arrive at solutions that are just Being gender queer or in the process of and fair for everyone. Judicial decisions transitioning or affirming gender identity that shape our laws and policies must can also result in exclusion from many be firmly rooted in evidence. This is kinds of employment. Other factors that certainly true in constitutional challenges, act as barriers to formal work include where rights infringements must be experiencing racism, particularly as an “demonstrably justified.”85 Courts also draw Indigenous person or an im/migrant84 to on legal principles from past decisions. In Canada; or living with a disability such addition to Bedford, there are other SCC as chronic pain or addiction, which again judgments stating that ideology and can be easier to accommodate within the morality alone are not sufficient bases flexibility offered by sex work. It would for criminalizing activities. be incorrect to assert that all sex workers
In the 2007 decision R v Labaye,86 the SCC ruled that, in situations where sexual 82 Raven Bowen, “They Walk Among Us: Sex Work Exiting, Re-entry and Duality” (Master’s acts are potentially criminalized, sexual Thesis, Simon Fraser University School of morality cannot serve as a proxy for political Criminology, 2013). morality and actual evidence of individual 83 O’Doherty, 104-105. harms. In Labaye, the owner of a private
84 We use this term to denote anyone who has traveled to Canada and now does sex work here, whether they are citizens or permanent residents, are on temporary work 85 Charter, Section 1. visas, or are undocumented in terms of their immigration status. 86 R v Labaye, 2005 SCC 80.
PAGE 36 · Pivot Legal Society club where patrons paid to engage in sex physically or psychologically harming those with each other, sometimes in groups, directly involved in the activity. Moreover, was charged with running a bawdy house in order to merit criminalization, the risk of under Section 210 of the Criminal Code87 these harms would have to be incompatible for permitting acts of indecency on the with the proper functioning of society.90 premises. It should be noted that the two The SCC explained that for activities with formulations of the bawdy house provision potentially very serious consequences, under the old law – using premises for the even a slight risk that the harms would purpose of prostitution and using premises occur may be enough; whereas, when the for practices of indecency – required consequences were less significant, there different evidentiary bases and were not might be a need for greater probability or interchangeable, so the reasoning in the certainty of harm before an activity could decisions cannot be applied directly to sex attract criminal sanctions.91 work cases.88 The Labaye case also was not argued on constitutional grounds. The SCC found there was no “indecency” Nonetheless, the SCC’s discussion of in the circumstances at issue in Labaye. sexuality and its explanation of how to The premises were private and not open quantify harm in Labaye is instructive, by invitation to the public, thus acts within especially in terms of how courts assess would not disturb unwitting bystanders. 89 laws that police sexual acts. None of the behaviours were likely to predispose others to socially destructive In Labaye, the SCC said that to rise to acts, and there was no evidence of “anti- the level of criminality, a behaviour or act social attitudes towards women.” Finally, all would have to cause palpable harm that undermined or threatened to undermine a fundamental constitutional value, 90 Labaye, paras. 61-62. such as interfering with the liberty and 91 Labaye, para. 61: “Where actual harm is not autonomy of others, predisposing others established and the Crown is relying on risk, to demonstrably anti-social behaviour, or the test of incompatibility with the proper functioning of society requires the Crown to establish a significant risk. Risk is a relative concept. The more extreme the nature of the harm, the lower the degree of risk that may be 87 As noted previously, it is still illegal to run required to permit use of the ultimate sanction a bawdy house. The Bedford SCC decision of criminal law. Sometimes, a small risk can changed the definition of a bawdy house under be said to be incompatible with the proper s. 197 by removing reference to the keeping of functioning of society. For example, the risk premises for “the purpose of prostitution,” but of a terrorist attack, although small, might be premises may still constitute an illegal bawdy so devastating in potential impact that using house if they are kept, occupied or resorted to the criminal law to counter the risk might be for “acts of indecency.” [Craig] appropriate. However, in most cases, the nature of the harm engendered by sexual conduct will 88 R v Tremblay, [1993] 2 SCR 932. require at least a probability that the risk will develop to justify convicting and imprisoning 89 The analysis in this section relies heavily on those engaged in or facilitating the conduct.” The arguments put forward by Elaine Craig, “Re- Court also cited R v Butler, [1992] 1 SCR 452, at Interpreting the Criminal Regulation of Sex para. 70: “Butler is clear that criminal indecency Work in Light of Labaye,” Canadian Criminal or obscenity must rest on actual harm or a Law Review 1 (2008): 327. significant risk of harm to individuals or society.”
Pivot Legal Society · Page 37 the sex engaged in was consensual and not A legal approach that starts from injurious to the individual participants. The the premise that women, because Court concluded that this activity – where of social realities such as economic money was exchanged with the club owner deprivation or social conditioning in order for the patrons to engage in sex – and false consciousness, can never was not harmful to Canadian social values, truly consent to, for example, because we tolerate an array of sexual loveless sex, or involvement with attitudes and tastes. “Consensual conduct pornography or sadomasochism behind code-locked doors can hardly be or prostitution is dogmatic, supposed to jeopardize a society as paternalistic and silencing for vigorous and tolerant as Canadian society.”92 many women.94
It is reasonable to anticipate that the To unequivocally equate sex in exchange SCC would bring a similar analysis to for money or goods with sexual examination of the PCEPA and require exploitation undermines women’s evidence of the social and individual harms sexual agency and license in our society. of allowing the purchase of sexual services. Recognizing that sexual diversity is At present, Canadian law still assumes in a not necessarily harmful does not erase variety of situations that the exchange of the reality that violence, sexual and money for sex is not inherently harmful: for otherwise, can and does occur in a example, in the production of pornography variety of circumstances, including in depicting sexual acts, which is legal in sex work. Rather, it recognizes that Canada, with certain limitations, and in those who do sex work are experts in swingers’ clubs like the one in Labaye.93 their own lives and allows them to As one legal commentator has observed, name their own experiences.
Requiring that the law’s effects be 92 Labaye, para. 71. substantiated in evidence would realign
93 Sensual massage and lap dancing are quasi-legal: the legal view of sex workers from while superior courts in different provinces have victims of objectification to agents issued conflicting judicial interpretations as to operating in multi-dimensional social whether these activities constitute sexual services in exchange for money, municipalities continue realities. It would allow the court to to license premises offering these services, and consider circumstances in which sex police continue to target workers, clients, and owners of these businesses. For jurisprudence, work is not only benign, but in fact is a see Alexandre c. R. [2007] JQ No. 11152 (Mun Ct) positive and private experience between and Marceau c. R., 2010 QCCA 1155, which held individuals that neither fits with that lap dancing was a form of prostitution; and R. v. Mara, [1997] 2 SCR 630, which held that it nor creates stereotypes. was not a form of indecency under the pre- Labaye formulation. In Adult Entertainment Association Of Canada v. Ottawa (City), 2005 CanLII 30850, the Ontario Superior Court discussed at length bylaws prohibiting touching of dancers, including that they were never followed in practice, without ever considering whether lap dancing constituted prostitution. 94 Craig, 333.
PAGE 38 · Pivot Legal Society The Ban on Purchasing Sex
Obtaining sexual services for consideration
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.
Pivot Legal Society · Page 39 What Does the Law Say? oral and penetrative sex, which both involve direct touching, were captured It has never been an offence for a sex as acts of prostitution; stripping and worker to sell sexual services, and that web camera performances were not. remains the case. However, Section As noted previously, under the previous 286.1(1) of the Criminal Code now makes laws, courts in different provinces varied it an offence for a client to pay for sexual in their interpretations of whether lap services (or to communicate to do so, dancing — an erotic dance performed on or which is discussed below), with more close to the lap of a patron, sometimes with serious penalties in certain places (near a direct physical contact — was considered park, school, or religious institution) and prostitution.. BDSM (bondage, domination, lesser penalties in any other location.95 sadism, and masochism) acts are usually not considered to be sexual services, even when intended to be sexually titillating What are Sexual Services? (although courts have considered these acts indecent in some circumstances). Erotic The term “sexual services” is not defined massage has to date occupied a grey area of anywhere in the law; therefore it is not clear the law, where some forms are interpreted exactly which services are captured as sexual services and others not. Many under the ban on purchasing sexual municipalities in Canada license massage 96 services. Under the previous laws, parlours and spas that provide erotic massage, but these licensed premises and their workers are also often subject to raids
95 The communicating aspect of this provision is or police surveillance. addressed in the next section of this report. It is likely the two offences were combined into one provision because communications about What are the Impacts? sexual transactions are more easily detectable than exchanges of money or sexual acts, which usually occur in private. Sex workers face very tangible dangers when their clients risk arrest for approaching 96 NDP MP Francoise Boivin asked the Justice Minister repeatedly for a definition of “sexual them. Fear of active surveillance by police services” during the second reading of the bill, creates distrust at the very least, and but did not receive any answer. A government ultimately means that sex workers do not technical paper produced to accompany Bill C-36 states that, in evaluating whether an act experience the same protective benefits constitutes “sexual services for consideration,” of the criminal law available to others in “the court will consider whether the service our society. Outlawing sex work also is sexual in nature, … whether the purpose of providing the service is to sexually gratify works to further stigmatize an already the person who receives it [and]… that the stigmatized occupation. consideration must be contingent on the provision of a particular sexual service….” Technical Paper, 3, with citations to case law a) Forces Sex Workers to Avoid in footnotes 25-30. The same paper at 3 notes Detection Instead of Focusing on Safety that based on previous case law, lap dancing, masturbation of a client in a massage parlour, and sado-masochism would be considered sexual services; however, the jurisprudence on Clients who are legitimately focused these acts across Canada is not consistent. on avoiding police detection are wary
PAGE 40 · Pivot Legal Society of attending sex workers’ places of b) Increases Police Surveillance business, whether on the street or and Monitoring of Sex Workers indoors. This encourages clients to seek out street-based sex workers working While police surveillance of locations in more isolated areas and to pressure where sex work takes place is them to get into cars quickly, or to ostensibly focused on clients, Amnesty look for more hidden indoor workers. International found evidence that It deters businesses that offer sexual many sex workers in Norway are still services from operating openly and subject to a high level of policing and transparently. Individual sex workers are targeted by police in multiple, or sex work businesses that screen intersecting ways to reduce and/or potential clients by requiring they call eradicate commercial sex: through from unblocked telephone numbers public nuisance policing, anti-sex and provide identification, employment work and anti-trafficking operations, references, or referrals from other sex and immigration enforcement. One workers are less likely to be able to social service provider told Amnesty get this information easily. Regardless International: of the particular work environment, criminalizing clients often means No other group in society has fewer customers and longer hours in this much police attention and riskier environments. has to live with it – even though they are not doing anything In the wake of a number of police illegal. This attention isn’t operations carried out on sex work warranted even by the offence “strolls” (streets frequented by sex the clients are charged with, let workers), sex workers in Ottawa have alone the fact the sex workers 99 reported that clients are so nervous are not breaking the law. about police “stings” that they are now probing sex workers’ identities to ensure A similar trend is emerging in some they are not police.97 This shifts the onus Canadian jurisdictions under the PCEPA. for demonstrating that the transaction is In early 2016, street-based sex workers safe onto sex workers and takes critical in Ottawa reported that they were under time away from screening, thereby greater scrutiny by police, who “run recreating the harmful conditions their names” (check their identities) on that led the SCC to strike down the police databases – even when they are prostitution laws in Bedford.98 not doing anything illegal.100 These sex workers also said police seize their harm reduction supplies, including equipment 97 yadgar Karim, “Ottawa Street-based Sex used to prepare or consume drugs and Workers and the Criminal Justice System: Interactions Under the New Legal Regime” (Master’s Thesis, University of Ottawa, 2016), 64 [Karim]. 99 The Human Cost of Crushing the Market, 8.
98 Karim, 84-85. 100 Karim, 72-75.
Pivot Legal Society · Page 41 condoms, a practice also employed by 2016 by 53 municipal police forces and police in Sudbury.101 In municipalities several RCMP detachments.103 Some across Canada throughout 2015, bylaws municipalities focused on street-based enforcement officers, sometimes sex workers, while others targeted accompanied by RCMP or local police indoor independent sex workers and and Canadian Border Services Agency massage parlour and spa workers. Officers, regularly visited massage Overwhelmingly, police statements parlours to check for infractions, even to media emphasized that police used though no charges were typically laid the possibility of arresting clients and during these “visits.”102 This pervasive third parties to monitor and approach and invasive monitoring of sex workers sex workers, entering sex workers’ work belies claims that the law is intended to spaces and homes in order to “build treat them as “victims.” trust” and “develop relationships” with the ultimate hope of convincing them to 104 During a national investigation leave sex work. called Operation Northern Spotlight, five waves of coordinated “anti- c) Inhibits Access to Police trafficking” raids were carried out Protection and the Justice System throughout the country in 2015 and Prohibiting the purchase of sexual services ensures that sex work remains a 101 Jim Moodie, “Sudbury police address clandestine activity and that sex workers prostitution scene,” The Sudbury actively shun police contact. This Star, January 15, 2015, http://www. thesudburystar.com/2015/01/15/sudbury- increases their vulnerability to violence police-address-prostitution-scene from predators posing as clients, who
102 Shaamini Yogaretnam,”Police raid residential target sex workers precisely for this erotic massage parlous, leading to 76 human trafficking charges for alleged ringleader”, National Post, September 16, 2015, http:// news.nationalpost.com/news/canada/ residential-erotic-massage-parlour-police- raid-leads-to-76-human-trafficking-charges; Doug Hempstead, “11 women face possible deportation after massage parlour raids”, Ottawa Sun, May 8, 2015, http://www. 103 “32 people charged with 78 offences ottawasun.com/2015/05/08/11-women- in Canada-wide human trafficking face-possible-deportation-after-massage- investigation,” Global News, October parlour-raids. See also Butterfly Asian and 18 2016, http://globalnews.ca/news/ Migrant Sex Workers Support Network, 3010667/32-people-charged-with-78- [Journey of Butterflies] 2016, April 2016, offences-in-canada-wide-human- http://media.wix.com/ugd/5bd754_ trafficking-investigation/ b53167612529491a8b30dae89f71bf55.pdf [Journey of the Butterflies]; SWAN Vancouver 104 Michael Lumsden, “Operation Society, Im/migrant Sex Workers, Myths Northern Spotlight: Escorts met by and Misconceptions: Realities of the Anti- police instead of dates in Calgary hotel Trafficked, 2015, http://swanvancouver.ca/ room,” Calgary Herald, October 18 2016, wp-content/uploads/2014/01/Realities-of- http://calgaryherald.com/news/local-news/ the-Anti-Trafficked.pdf [Realities of the operation-spotlight-escorts-met-by-police- Anti-Trafficked]. instead-of-dates-in-calgary-hotel-room
PAGE 42 · Pivot Legal Society reason.105 Sex workers from SWUAV have course of their time doing sex work.106 described this as feeling like the law paints a target on their backs. Amnesty International also found that sex workers in Norway have to risk The Norwegian government, which eviction, police surveillance, loss of criminalized the purchase of sex in 2008, livelihood and/or deportation if they funded surveys in 2007, 2009 and 2012 engage with police. It is not surprising of women who sell sex in Norway. A 2012 then that nearly all of the women report on these surveys concluded that: Amnesty International interviewed said “…women selling sex in Oslo comprise a that they would only consider voluntarily group that has been the victim of severe engaging with police as a last resort – violence... The high frequency of this often only in extreme circumstances, severe violence in such a small group of where there was an immediate threat to people is rare in the city of Oslo.” The their lives. study found that 59% of the 123 women surveyed had experienced violence in In New Zealand, where sex work has the period between 2009 and 2012. This been decriminalized since 2003, sex compared to 52% of respondents in workers have reported improved the previous 2007 survey who reported relations with police, with greater experiencing violence over the entire abilities to access legal protections –
106 The organization conducting the research, Pro Sentret (Norway’s largest service provider for sex workers and a recognized centre of expertise), found significant increases in experiences of violence were particularly pronounced amongst migrants who sold sex. In the 2007 survey, 33% of the Nigerian respondents said they had experienced violence in the course of 105 Under the previous prostitution laws, the their time in commercial sex, compared MWCI examined the root causes of police with 83% who said they had experienced failure to catch a serial killer and found that violence between 2009 and 2012. The Pro police forces exhibited an institutional bias Sentret study also recorded a near-doubling against sex workers, resulting in a failure in experiences of violence among women to prioritize and investigate these cases of Thai origin who sold sex, with 21% of and to listen to victims of violence and Thai women reporting having experienced take them seriously. The police’s failure to violence over the course of their time in respond contributed to a sense of impunity commercial sex in 2007 compared with for perpetrators. The MWCI also found 40% between 2009 and 2012. The only that sex workers who experienced violence group that reported any reduction in violent evaded police instead of seeking their help. experiences were ethnic Norwegian women Considerable work has been done by the in commercial sex (72% in 2007 compared VPD to repair relations between police with 55% in the 2012 survey). See: Ulla and sex workers, but one of the most Bjorndahn, Dangerous Liaisons: A report significant elements contributing to this on the violence women inprostitution in new relationship is the police commitment Oslo are exposed to (Oslo: Municipality of not to enforce sex work laws unless there Oslo, 2012), 37-38, http://prosentret.no/ are reports of violence, coercion, organized en/publikasjoner/ pro-sentrets-reports-in- crime, or youth involvement. english/
Pivot Legal Society · Page 43 as well as the power to tell police protections available to others engaged to leave them alone while they are in legal for-profit activities. Even though working.107 In 2005, a client was fined sex workers are specifically exempted for removing a condom against a sex from prosecution for profiting from their worker’s will during sex.108 In 2007, own sale of sexual services, in practice, 90% of sex workers who responded to they have no legal remedies available to an independent survey commissioned recoup losses when they are not paid. by the government felt that they It is difficult to hypothesize how a court had greater legal protection after would respond under the PCEPA, even if decriminalization.109 Sixty percent said it a sex worker were motivated to pursue was easier to get help from authorities.110 a breach of contract claim, since the In 2014, a sex worker recovered common law forbids enforcement of any substantial damages from a brothel contract to achieve an illegal end. manager for sexual harassment.111 d) Promotes Stigma and Discrimination When purchasing sex is criminalized, sex workers are unwilling or unable to When sex work is criminalized, all sex access police to report violent offenders workers face social censure, because and cannot benefit from the civil law they are engaging in an illicit activity perceived as detrimental to Canadian society. As tenants, they fear being 107 Lynzi Armstrong, “From Law Enforcement evicted, including from social housing to Protection? Interactions between Sex Workers and Police in a Decriminalized that prohibits occupants from engaging Street-Based Sex Industry,” British Journal in unlawful acts on the premises. of Criminology, (2007), doi: 10.1093/ As parents, they fear ostracism, bjc/azw019, http://bjc.oxfordjournals.org/ content/ early/2016/02/16/bjc.azw019.full?ke reputational damage, custody challenges ytype=ref&ijkey=ggNgTPWUiMW22RY. during spousal separation, and
108 Gillian Abel, Lisa Fitzgerald, Catherine apprehension of their children by child Healy, Aline Taylor, eds., Taking the Crime protection services. There is a large body out of Sex Work: New Zealand sex workers’ of academic literature addressing stigma, fight for decriminalization (Great Britain: The Policy Press, 2010), 78. [Taking the and research conducted with indoor Crime out of Sex Work]. workers working in a variety of situations
109 Gillian Abel, Lisa Fitzgerald and Cheryl across Canada suggests that they fear Brunton, The Impact of the Prostitution “outing” more than they fear violence or Reform Act on The Health and Safety Practices victimization (defined in the study as, of Sex Workers: Report to the Prostitution Law Review Committee, 2007, 12, http://www. for example, non-violent theft or refusal otago.ac.nz/christchurch/otago018607.pdf to provide payment) from clients.112 Sex [Impact of the Prostitution Reform Act]. workers who simultaneously experience 110 Impact of the Prostitution Reform Act, 15. discrimination on multiple grounds
111 DML v Montgomery and M&T Enterprises, (because they are racialized, particularly [2014] NZHRRT 6, https://www.justice. govt.nz/assets/Documents/Decisions/2014- NZHRRT-6-DML-v-Montgomery-and-MT- Enterprises-Ltd.pdf [DML v Montgomery]. 112 O’Doherty.
PAGE 44 · Pivot Legal Society if they are Indigenous people or im/ the course of the surveys between 1996 migrants; because they are disabled, and 2002 and remained high in 2008. including by mental health challenges or However, the same study also found that by addiction; or because they are queer support for the criminalization of selling or gender non-conforming, especially sex had increased, particularly among if they are young) also face heightened Swedish women. surveillance by police and government agencies and greater likelihood of These studies indicate that laws can 113 violence from members of the public. be used to effect changes in public attitudes towards buying sex, suggesting Service providers in Norway and many of that criminalization produces greater the sex workers interviewed by Amnesty condemnation of people who sell or International expressed concern that trade sex: attitudes towards people who sell sex have hardened in recent years. Research Punitive attitudes towards by the main provider of services to sex sex workers are an indicator workers in Oslo indicates that more of increased stigma and are a sex workers report being harassed by driver of discrimination against members of the public more frequently sex workers. The extent to now than before the ban on buying sex which states can selectively was introduced.114 Similarly, a Swedish stigmatize one side of the sex study published in 2010 looked at work transaction without also the impact the ban on purchasing sex increasing stigma against the had on public attitudes towards the other group involved – namely sale and buying of sex in Sweden. It people who sell sex – 115 compared the findings of four surveys is therefore in doubt. conducted in 1996, 1999 (the year the Swedish ban was introduced), 2002, and What Rights Are Infringed? 2008. Support among respondents for criminalization of buying sex grew over The ban on purchasing sex directly impacts sex workers’ safety, engaging the rights to liberty, life, and security 113 Prostitutes of Ottawa/Gatineau Work, of the person under Section 7 of the Educate and Resist (POWER), The Charter, as well as Section 15, the Toolbox: What Works for Sex Workers, ed. Frederique Chabot, (2012), 33-47, http:// guarantee of equality under the law. www.powerottawa.ca/ POWER_Report_ TheToolbox.pdf. Note that the situation is somewhat different for sex workers who are In a Section 7 analysis, it is likely the MSM, who often report feeling invisible both prohibition on purchasing sex would in queer communities and in society at large. be found to violate the principles of 114 Amnesty International, Sex Workers at Risk: A Research Summary on Human Rights Abuses Against Sex Workers, 26 May 2016, 11, https://www.amnesty.org/en/ 115 The Human Cost of Crushing the Market, documents/pol40/4061/2016/en/ 89-90.
Pivot Legal Society · Page 45 fundamental justice, because the effect of the law is to put those engaged in a technically legal activity in danger, in ways that evoke the findings in Bedford. The ban is arbitrary in the sense that it functions at cross purposes to many of the stated objectives in the PCEPA’s Preamble. Use of asymmetrical criminalization in other countries has not been shown to reduce the incidence of sex work. Rather than enhancing human dignity and promoting gender equality, the criminalization of sex work actively contributes to discrimination against sex workers and exposes them to greater danger. The ban on purchasing sex is also overbroad, in that it prohibits all sex work, not just the small number of transactions in which some form of violence or exploitation actually occurs. It is therefore difficult to see how this provision could be considered beneficial and justified under Section 1.
Outlawing sexual transactions also creates a distinction that sets sex workers apart and prevents them from enjoying the full protection and benefits of the law that they are guaranteed under Section 15 of the Charter. This is true for all sex workers, but is experienced most acutely by those who have historically been targets of racial and gender discrimination. The prohibition on purchasing sex therefore perpetuates dehumanizing stereotypes. If the law’s objective is ameliorative, aimed at promoting gender equality and protecting those who are rendered vulnerable by pre-existing inequity, it is not just abysmally ineffective but actually counter- productive. The prohibition on purchasing sex is therefore not rationally connected to its avowed aims and not justifiable.
PAGE 46 · Pivot Legal Society Bans on Communicating to Sell or Purchase Sex
Offences in Relation to Offering, Providing or Obtaining Sexual Services for Consideration
Stopping or impeding traffic 213 (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,
(a) stops or attempts to stop any motor vehicle; or
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place.
(c) [Repealed, 2014, c. 25, s. 15]
Communicating to provide sexual services for consideration (1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration — in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.
(2) In this Section, public place includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
Pivot Legal Society · Page 47 What Does The Law Say? 286.1(1), reproduced in its entirety in the previous section above) also makes The PCEPA introduced one it illegal for a client to communicate communicating provision for sex with a sex worker about purchasing workers and another for clients. Given sexual services. Client communications that consenting to a sexual act is by are prohibited in all places and at definition a two-way exchange, these two all times: in person, in writing, by provisions must be considered together. telephone, by email, or through any kind of web-based messaging service. The offences carry more serious The PCEPA altered the offence of publicly penalties for communications that communicating to provide sexual services happen at, next to, or in view of a for consideration by narrowing the public school, park, or religious institution places in which communications by sex (perplexingly, these are not the same workers are criminalized. Section 213(1) as the locations where sex worker (c) (struck down by the SCC in Bedford) communication is criminalized). While was replaced by Section 213(1.1), which sex workers can communicate with stipulates that sex workers cannot their clients legally, provided they are communicate to provide sexual services not in a prohibited public place, clients at, next to, or in view of a school, can never legally respond to or initiate playground or daycare centre. In other communications. words, the new law targets sex workers who communicate “at, or next to” particular places where children might The Criminal Code provisions that be expected to be present.116 Section prohibited a sex worker from stopping 213(1.1) is in, wording and effect, a a motor vehicle (Section 213(1)(a)) or marginally narrower version of its impeding access to premises (Section unconstitutional predecessor. 213(1)(b)) were not modified by the PCEPA. These provisions were not constitutionally challenged in Bedford, The provision criminalizing the and until recently they were rarely used. purchase of sexual services (Section
What Are The Impacts? 116 The draft of the bill tabled in July 2014 prohibited communicating for the purpose of selling sexual services “in a public place, Many of the impacts that sex or in any place open to public view, that workers experience as a result of is, or is next to a place where persons the communicating laws are similar under the age of 18 could reasonably be expected to be present.” This provision to those stemming from the ban was the subject of considerable criticism on purchasing sexual services and during debate in the House as potentially the resulting desire to avoid police as unconstitutional as the previous law and was subsequently amended to designate detection. Street-based sex workers specific places in which communicating is are still subject to arrest under the an offence. It can be contrasted with s. 161 of the Criminal Code, prohibition orders, communicating laws and continue to which is considerably more precise.
PAGE 48 · Pivot Legal Society face charges in some municipalities. The Police in St. Catharines, ON, continued ban on communication by clients affects to lay charges against sex workers under all sex workers and has significantly Subsections 213(1)(a) and (b) in 2015119 changed the way many do business. The and 2016.120 In July 2016, police in St. complete ban on communications by Catharines conducted a sweep of street- clients also has the effect of preventing based sex workers using undercover parties from legally reaching mutual officers posing as potential clients. Sex understanding of the sexual acts they workers were arrested and taken into intend to engage in. custody for stopping traffic under s. 213(1)(a) – even though police stopped a) Ongoing Arrests and Harassment their vehicles to make initial contact. Known as Operation Red Light, this sting was part of an intensified effort Police from different parts of Canada by the police to eliminate street-based stated publicly during the Senate hearings sex work in the area. A Staff Sargent that they found the communicating laws with the Niagara Regional Police (the St. useful tools that allowed them to intervene Catharines local police force) was quoted to remove sex workers from situations in the local paper stating, “It is frustrating and thereby help them.117 News stories for the police and the citizens that have suggest that police in some communities businesses down here or live down here,” actively use Section 213 to harass sex and that he does “feel for the women. workers, primarily in response to nuisance They are victims, but the women — and complaints, but also allegedly as a way the johns — are breaking the law, and we of making contact with sex workers, to encourage them to leave the sex trade.118
117 Testimony of Chief Eric Jolliffe, Detective 119 14 persons, 5 women and 9 men, were Thai Truong, and Chief Rick Hanson before arrested on “prostitution charges” in October the Standing Justice Committee on Justice 2015, but it is not clear from news articles and Human Rights, July 9, 2014, at which Criminal Code provisions were used. http://www.parl.gc.ca/HousePublications/ See for example: “Police arrested 14 in Publication.aspx?Language=e&Mode=1&Parl=4 prostitution/john sweep,” Niagara This Week, 1&Ses=2&DocId=6687033. October 30, 2015, http://m.niagarathisweek. com/news-story/6063294-police-arrested-14- 118 Jim Moodie, “Sudbury Police Address in-prostitute-john-sweep Prostitution Scene, The Sudbury Star, January 15, 2015, http://www.thesudburystar. 120 Bill Sawchuk, “Undercover cops take aim at com/2015/01/15/sudbury-police-address- the sex trade,” St Catharine’s Standard, July prostitution-scene;” “Sydney prostition 20, 2016 http://www.stcatharinesstandard. crackdown will continue, says Cape Breton ca/2016/07/20/undercover-cops-take-aim- Police Chief”, CBC, September 9, 2015, http:// at-sex-trade [“Undercover cops take aim www.cbc.ca/news/canada/nova-scotia/ at the sex trade”]. See also St. Catharine’s sydney-prostitution-crackdown-will-continue- News Release, “Mayor Sendzik meets with says-cape-breton-police-chief-1.3220927; Chief McGuire to discuss Queenston Street Terrence McEachern, “Regina prostitution community response,” July 26, 2016, http:// enforcement back on track,” Regina Leader- www.stcatharines.ca/en/governin/resources/ Post, November 27, 2015, http://leaderpost. Mayor-Sendzik-meets-with-Chief- McGuire- com/news/crime/regina-prostitution- to-discuss-Queenston-Street-community- enforcement-back-on-track. response.pdf
Pivot Legal Society · Page 49 are the cops. This is what we do.”121 The or is located next to playgrounds, sex workers were released on conditions theoretically making these areas off that included “no-go orders” prohibiting limits. This displacement encourages them from entering the area of the sex workers to work in business centres city where the support services many and industrial areas less frequented at access are located; reportedly some night and often poorly lit. As with the were offered diversion if they agreed to previous communicating provisions and attend a study program about exiting the prohibition on purchasing sex, the sex work. In September 2016, after initial pressure to avoid detection prevents appearances, the Crown withdrew all the street-based sex workers from engaging charges that had been laid in July.122 in their client screening routines, making them more vulnerable to predators b) Renews Displacement and posing as clients. Obstructs Client Screening c) Prevents Negotiating Consent As a result of increased police to Conditions of Sexual Services surveillance, street-based sex workers are still resorting to using alleys, side A principle tenet of Canadian sexual streets, and isolated areas and thus are assault law is the importance of forced to work in unsafe conditions123 consent. Consent is what separates sex – the same conditions that were from sexual assault. Our sexual assault brought to the Court’s attention in laws say that consent to sexual activity Bedford. In urban settings, particularly must be voluntary and affirmative, and in densely populated neighbourhoods, that consent can never be assumed the laws make large swathes of the or given on behalf of another person. city inaccessible: communications Consent to sexual activity can also be prohibitions prevent sex workers from withdrawn at any time.124 Talking about working near playgrounds, daycares, how to engage in and continue sexual and schools, and clients face increased activity is fundamental to maintaining penalties for interacting with sex workers physical safety as well as emotional and around schools, parks, and religious bodily integrity. institutions. In densely populated urban neighbourhoods, including Vancouver’s Because of sweeping restrictions on DTES, often the social housing in which communication, it is even more difficult sex workers and their children live also now than under the previous laws for sex houses daycare and pre-school facilities, workers to clearly establish which acts they are willing to perform – and those they are not. This is not just true for 121 “Undercover cops take aim at the sex trade.” street-based sex workers. All sex workers 122 Personal communication with Maija Martin, criminal defence lawyer representing eight of the sex workers, September 26, 2016. 124 Criminal Code, s. 271, and R v Ewanchuk, 123 Karim, 23. [1999] 1 SCR 330.
PAGE 50 · Pivot Legal Society are constrained by the ban on client keep children from being exposed communications, with many reporting to adults discussing transactions significant anxiety as a consequence. for sex. Speeches during second The uncertainties attendant on reading of the bill refer to protecting ambiguous communications are an children from exposure to the “dangers issue for indoor workers who rely on the associated with prostitution, such internet to communicate with clients, as the presence of drugs, pimps, and and who previously appreciated the ease persons associated with organized of making initial contacts, screening, and crime.”126 These are highly stigmatizing reaching agreements this way. This is characterizations of sex work These are discussed further below in the analysis highly stigmatizing characterizations of the ban on advertising, which serves that scapegoat sex workers for much the same function for indoor activities that may have nothing to do workers that outdoor communications with them. do for outdoor workers. In 1990 the SCC considered whether What Rights Are Infringed? the communicating provision banning public communications was a justifiable The communicating provisions clearly infringement of the right to free inhibit sex workers’ free speech under speech in the Prostitution Reference, Section 2(b) of the Charter. They prevent when the provincial government of sex workers and their clients from Manitoba asked the SCC for guidance in discussing and agreeing to the terms of interpreting a Criminal Code provision a sexual transaction that would be legal, on communicating identical to Section but for the payment of money. The SCC 213(1)(c) struck down in Bedford. At has found that freedom of expression that time, the SCC held that although includes the rights to transmit and Section 2(b) was infringed, the receive expression.125 For sex workers infringement was justifiable, in part doing street-based work in certain because it characterized communicating settings, both aspects of the Section 2(b) as expression for an economic purpose, right are potentially infringed. something that was “not at, or even near, the core of the guarantee of freedom of expression.”127 The justification put forward for Section 213 is two-fold. As with the previous version of the communicating The understanding of the function that laws, it aims to ensure traffic safety communicating serves has changed and prevent nuisance, including significantly since the Prostitution street noise. The PCEPA’s Preamble and the rewording of Section 213(1.1) also indicate that the law aims to 126 Bob Dechert, MP for Mississauga- Erindale, ON, https://openparliament.ca/ debates/2014/6/12/bob-dechert-4/
125 Vancouver Sun (Re), 2004 SCC 43, para. 26. 127 Prostitution Reference, 1136.
Pivot Legal Society · Page 51 Reference. The evidence put before consent and sexual assault have the court in Bedford greatly expanded figured so prominently in advocacy judicial understanding of what sex for women’s equality, suggests that work actually entails and what risks sex they are also not rationally connected workers typically face in their work. It has to their aim. been recognized that, for sex workers, communicating prior to a sexual act is The communicating provisions are much more about sexual consent and also impermissibly broad, because safety than it is about money. In fact, they criminalize communicating in all Section 213(1)(c) was struck down in situations, targeting communications Bedford not for violating Section 2(b) but even in the most private of rather Section 7, security of the person. circumstances – for example, in The new communicating provisions email communications between two simultaneously engage both individuals or in sex workers’ own these rights. homes. If the aim of Section 213(1.1) is preventing children from being exposed Given that the current communicating to sex work, the provision overreaches laws actively impede the negotiation by declaring public spaces off-limits, of consent and prevent sex workers even at night, when it is unlikely that from making intimate decisions children would be present.129 In cases about their bodies, it would be of real inconvenience or perceived difficult to see how they could be social harm, issues of noise and traffic found to uphold the principles of would be better addressed through fundamental justice.128 The previous municipal dialogue and zoning than communicating law was found to be through criminalization. grossly disproportionate, because the aim of the law was to eliminate These laws are being actively used nuisance in communities, but its by some police forces to arrest sex impact was to put street-based sex workers, and by others to harass them, workers’ lives at risk. The present which means that the conditions laws, Sections 213(1.1) and 286(1) described in the Bedford decision are go further – they endanger not only being replicated. There is particular street-based sex workers but all sex urgency in ensuring these provisions workers, by obstructing the essential are repealed. communication that allows sex workers to decide and convey whether they will consent to sexual relations 129 Other cases have found similar with individual clients. The fact that provisions applying to possession of they do this in the name of eliminating drugs for the purpose of trafficking to be gender-based discrimination, when unconstitutionally vague and overbroad: see R v Dickey, 2016 BCCA 177, involving three plaintiffs convicted of making drug transactions near schools, although the 128 Morgentaler; Carter v. Canada (Attorney cases were ultimately decided on s. 12, General), 2015 SCC 5 [Carter SCC]. not on s. 7.
PAGE 52 · Pivot Legal Society Bans on Working with Others
Material benefit from sexual services
286.2 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Material benefit from sexual services provided by person under 18 years (2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.
Presumption (3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.
Exception (4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit
(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;
(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;
(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or
(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.
Pivot Legal Society · Page 53
No exception (5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person
(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;
(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;
(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;
(d) engaged in conduct, in relation to any person, that would constitute an offence under Section 286.3; or
(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
Aggravating factor (6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
Procuring 286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
PAGE 54 · Pivot Legal Society What Does The Law Say? technical paper,131 they are taken from previous case law that defines There are two separate types of relationships with family including offences in the PCEPA that impede children and intimate partners as not 132 sex workers from working with others: parasitic. Presumably this could the material benefits offences and the also include roommates, as found in procuring offences. These provisions the Downey case, as well as those replace the previous procuring who have business dealings with 133 provisions in the Criminal Code, sex workers as creditors. The new including the “living on the avails” provisions also exempt from charges provision (Section 212(1)(j)), which people who are paid to perform a appeared under Procuring. They aim to service for a sex worker that is offered prevent any commercialization of the to the general public -- for example, as provision of sexual services, making a taxi driver or an accountant. Anyone it a crime to profit or receive anything who offers a service only to the sex tangible from someone else’s sex work. worker, but at a cost proportionate to the value of the service and without encouraging sex work – perhaps by The material benefits offence is one driving an individual worker to a date, of the longest and most convoluted for example -- is also not liable. parts of the PCEPA. Section 286.2(3) contains a reverse onus130 that presumes, in the absence of proof to None of these exemptions applies if the contrary, that anyone associating the person benefiting from another’s with a sex worker is an exploiter. sex work used violence or coercion or Section 286.2(4) sets out a list of abused a power differential in any way exceptions to this presumption, then in the relationship. The exemptions also provides further exceptions to those do not apply to anyone who supplies a exceptions. Apparently drafted in sex worker with drugs or alcohol as an an effort to be more precise than inducement or encourages or recruits the previous overbroad law, the that person to do sex work. presumption of exploitation does not apply to those who receive a Perhaps most critically for the vast benefit from sex worker as a result of majority of sex workers in Canada who “legitimate living arrangements” or work indoors, none of the exemptions “legal or moral obligations.” Neither of apply in any context that could be these terms is defined in the law, but deemed a “commercial enterprise”. according to a Department of Justice “Commercial enterprise” is also not
131 Technical Paper.
130 A “reverse onus” law requires the accused 132 R v Grilo, [1991] 64 CCC (3d) 53 (ONCA) to prove their innocence instead of [Grilo]. requiring the prosecution to prove their guilt. For more, see Appendix 1. 133 Grilo.
Pivot Legal Society · Page 55 defined in the law, but it appears that holding, concealing, or harbouring a this exclusion from the exemptions person, or exercising control, direction, effectively criminalizes all businesses or influence over their movement.135 where sexual services are offered and, Because “recruiting” a person to do sex by extension, the staff who work there. work is prohibited, this provision could In fact, it is an aggravating factor to apply to anyone in a management or obtain a material benefit in the context administrative position responsible for of a commercial enterprise, giving rise hiring staff at a business that offers to the possibility of a longer sentence sexual services, including a massage or to anyone convicted under this body-rub parlour or a “micro-brothel,” provision. Section 286.5(1)(a) provides a term commonly used to refer to immunity to any sex worker obtaining a unlicensed businesses employing material benefit in regard to their own a small number of sex workers run sexual services, but there is nothing in out of condominiums or other the law to suggest that a sex worker residential premises. could not be charged for money earned or other benefits obtained in part from What Are The Impacts? work done by other sex workers. This potentially criminalizes sex workers a) Skews Representation of Sex working together -- for example, Workers’ Personal Relationships performing “duos” or dates where two sex workers see clients together, or alternately booking appointments, While these provisions prohibiting cleaning facilities, or performing any working with others may have been number of rotating duties that sex intended to prevent exploitation, they workers often share in indoor have their roots in exaggerated and premises -- unless they intentionally often racist stereotypes of “pimps” establish a collective model for as violent, controlling racialized men equal profit sharing.134 and of sex workers as drug-addicted
and helpless. Academic sex work Even though most of the clauses under researchers have observed, Procuring were not the subject of a constitutional challenge in Bedford, the PCEPA made minor changes to the procuring offence. Under the new 135 It is notable that the wording of the remaining procuring provisions mirrors section, it is an offence to arrange that of s. 279.01 of the Criminal Code, for or persuade a person to offer or trafficking in persons. The procuring provisions do not contain any references provide sexual services for payment, to transporting, transferring or receiving or to facilitate the purchase of sexual persons, and the trafficking provisions do services by a client by recruiting, not reference the sale of sexual services, but both offences criminalize anyone who “recruits, holds, conceals or harbours a person” or “exercises control, direction or influence over the movements of 134 Technical Paper. that person.”
PAGE 56 · Pivot Legal Society Stereotypes based on relationships, but that they live and stigmatic assumptions work with anxiety and fear that those persist in part because, in they associate with could be arrested, spite of renewed academic and that they could lose their jobs. interest in sex work and the This intensifies the social isolation personal and professional that many sex workers experience lives of sex workers, there is because of stigma. a dearth of evidence-based knowledge about third parties Section 286.2(5)(a), which nullifies – those individuals involved in any exemption from the presumption commercial sex transactions of exploitation if someone receiving who are neither sex a benefit uses threats or violence, 136 workers nor clients. also has a deterrent effect on the reporting of domestic or intimate The material benefits and procuring partner violence. When sex workers provisions continue to essentialize do experience coercion or violence, it sex workers’ lives and reduce their is not necessarily directly caused by relationships to one-dimensional doing sex work; like others, they may interactions based only around their experience discord in the context of a work. For example, Section 286.2(5) relationship with a family member, an (c) could potentially be used to charge intimate partner, or a drug dealer for friends, co-workers, and intimate reasons unconnected to their work.137 partners who share alcohol with In some cases, interventions using the sex workers prior to their meetings ordinary provisions of the Criminal with clients. The provision refers to Code (for example, concerning assault, substances provided for “the purpose criminal harassment, extortion, or of aiding or abetting that person to applications for restraining orders) offer or provide sexual services for are appropriate. Sex workers who consideration.” However, in the case of already distrust the justice system are people sharing the profits of a sex work extremely unlikely to call police during transaction, including because they live an altercation or seek a restraining together, it is not difficult to see how order against an abusive partner it could be applied even in situations or family member if doing so could involving no coercion or exploitation. result in their own “outing” as a While not all sex workers use sex worker and in the aggressor substances, as with other aspects of the potentially being charged with law, this provision draws a distinction receiving a material benefit — based on stereotype. Typically, what an offence carrying a maximum this means is not that sex workers eschew personal or safety-enhancing
136 Bruckert and Law, 7. 137 Bruckert and Law, 12.
Pivot Legal Society · Page 57 penalty of 10 years imprisonment.138 The criminalization of all businesses selling sexual services means sex b) Disadvantages Those Who Lack workers who want to work legally Resources to Work Independently must work alone. Not only does this mean potentially greater isolation and less community for sex workers, it Although the material benefit also privileges those who are better provisions have been framed as resourced. While independent indoor capturing relationships of exploitation, sex workers are also feeling scrutinized in reality they criminalize managers, and fearful under the PCEPA, some are receptionists, bouncers, and other still able to work alone in relative safety, security personnel who screen clients particularly if they have regular clients. onsite at sex work businesses, as well To work independently, they must have as drivers who take sex workers to out- a phone, a reliable internet connection, call dates. This effectively prevents and their own facilities, including a any business offering sexual services residence or other premises from which from operating legally. Sex workers to work. More marginalized sex workers rely on these businesses for premises who cannot afford these essential in which to work, support in dealing business tools, and who may lack the with intoxicated or abusive clients, connections, confidence, or language and regular wages. Many businesses skills to arrange for and acquire them, do have established practices and venue not have the same options. safety policies that contribute to safer work environments, including having procedures for dealing with situations c) Excludes Sex Workers from of potential aggression, maintaining Workplace Protection Regimes “bad client” lists, employing security measures, and facilitating access to It is impossible to generalize about the sexual and reproductive health supplies wide variety of conditions that exist in including barrier contraceptives.139 different sex work businesses across Canada. Still, the research on sex workers employed in indoor businesses suggests 138 Compare this, for example, to assault that the workplace issues and abuse they under Section 266 of the Criminal Code, encounter are unfair labour practices with a maximum penalty of 18 months common to unregulated industries: imprisonment if the Crown proceeds on summary conviction and five years if unpaid wages, fines for arbitrary charged as indictable. workplace rules, sexual harassment, 139 P Duff, J Shoveller, G Ogilvie, J Montaner, and shifts longer than employment laws J Chettiar, S Dobrer, and K Shannon, permit.140 Since sex work businesses “The Impact of Social Policy and Physical survive by avoiding interaction with Venue Features and Social Cohesion on Negotiation of Barrier Contraceptives authorities, workers are excluded from Among Sex Workers: A Safer Indoor Work Environment Scale,” Journal of Epidemiology and Community Health, 2014. [A Safer Indoor Work Environment Scale] 140 Bruckert and Law; Making SPACES.
PAGE 58 · Pivot Legal Society provincial workers’ rights protections, and procuring provisions is to make it including occupational health and safety illegal to run a business with the aim of regulations and employment standards. providing sexual services, unless you Making their working arrangements illegal are a sole proprietor. While the living on makes it impossible for workers to bring the avails provision was struck down as forward complaints and to access labour unconstitutional for isolating sex workers and employment tribunals and benefits and thereby creating vulnerability, available to other workers. the new material benefits provisions accomplish essentially the same thing. Additionally, as was found in The new Section 286.2 (material benefits) Bedford, doing sex work together and 286.3 (procuring) provisions rework with others is generally safer. One the previous Criminal Code provisions, study from Vancouver has also found but they still impair the ability of sex that experienced owners of indoor workers to enjoy the assistance of establishments are more likely to working legally with other employees encourage safer sex practices, provide who help to mitigate workplace risks, condoms, and protect sex workers from thereby infringing sex workers’ right to dangerous clients. Sex workers in these security of the person under Section 7. studies preferred working in larger They are inconsistent with the principles venues where co-workers could (and did) of fundamental justice because they are intervene to de-escalate situations with overbroad: like the previous living on the difficult clients.141 avails provision, they capture positive and protective relationships, as well as exploitative ones, and rather than What Rights Are Infringed? lessening the risk of harm to sex workers, they increase it. Drafters of the PCEPA may argue that the procuring and material benefits The presumption that anyone living or provisions were designed to protect working with a sex worker is guilty of sex workers from exploitation. In fact, exploitation, absent evidence otherwise, their effect is just the opposite – they is a clear violation of Section 11 of the replicate pre-Bedford conditions by Charter, which presumes everyone is stripping sex workers of the opportunity innocent until proven guilty. This to create and maintain supportive work applies equally to sex workers who environments where they can expect work together. fair labour practices. Sex workers in these situations could be subject to charges themselves. The laws that prevent this kind of cooperative engagement may violate sex workers’ Section 2(d) rights to associate The net effect of the material benefits with each other and work collectively. This is an area in which the law is rapidly
141 A Safer Work Indoor Work Environment evolving, and while most cases involving Scale. Section 2(d) to date have occurred in the
Pivot Legal Society · Page 59 context of organized labour, there discussed in more detail in the chapter is a particular concern for ensuring that False Equation: The Conflation vulnerable and marginalized workers have of Trafficking and Sex Work. opportunities for collective organization. Ban on Advertising As noted above, these provisions make it more difficult for those without resources to work indoors, resulting in Advertising sexual services particular disadvantages for sex workers who are poor, racialized, or living with 286.4 Everyone who knowingly disabilities. Thus these provisions are advertises an offer to provide sexual also implicated as violating equality services for consideration is guilty of rights under Section 15 of the Charter.
(a) an indictable offence and liable As with the previous provisions to imprisonment for a term of not discussed, and for the same reasons, the more than five years; or material benefits provisions are unlikely to be saved by Section 1 of the Charter. (b) an offence punishable on The ostensible aim of these provisions summary conviction and liable is to prevent parasitic relationships. As to imprisonment for a term of noted previously, the best way to achieve not more than 18 months. this is to ensure sex workers have access to justice. In terms of violence, this includes unbiased access to police to What Does The Law Say? report sexual and physical assault, seek a restraining order against a potential Section 286.4 criminalizes any person aggressor, or pursue an action against or entity knowingly advertising the offer someone engaging in technology- of another person’s sexual services. facilitated violence such as cyberstalking The advertising ban has yet to be or internet blackmail.142 It is possible judicially interpreted, thus there is some to detect, report, and eliminate labour uncertainty as to what this provision exploitation and sexual harassment when actually prohibits. On its face, it appears those reporting do not fear jeopardizing to prohibit any print or online entity – any their livelihood and income. This means newspaper, magazine, website, blog, providing workers access to occupational online message board, or electronic health and safety regulations and platform – from carrying sex workers’ employment standards that prioritize the ads. The law could also be used to charge wellbeing and safety of workers. Cases any business like an escort agency or of actual coercion could be dealt with a massage parlour that advertises its using existing trafficking laws, which are employees’ services. Section 286.5(1)(b) provides immunity to sex workers who are advertising only their own sexual
142 See Appendix 2. services, but there is nothing to suggest
PAGE 60 · Pivot Legal Society this immunity extends to third parties who Like communicating on the street or by carry or facilitate placement of those ads. phone, advertising fulfills a screening function, providing sex workers with What Are The Impacts? a way to describe their appearances, specialties, and prices before ever engaging with a client. This allows a) Creates an Additional Barrier to the sex worker and the client to set Working Indoors expectations and reach agreements in advance, rather than having to The challenges facing sex workers who negotiate in person, potentially at the want to work indoors (discussed above) client’s residence in an environment are exacerbated by the prohibition unfamiliar to the sex worker.144 In the on advertising, which makes it all but past, sex workers advertising online impossible for sex workers to legally typically offered a menu of services apprise clients of their services. using acronyms. Some had very direct Increasingly, sex workers situated in descriptions of what they would not all parts of the industry use online do (for example, that they did erotic methods to connect with clients; even massage but did not allow clients to street-based sex workers may arrange touch them, or that they would engage to meet dates in particular areas using in vaginal but not anal sex).145 online messaging tools. In response to the advertising law, some websites have informed sex Escorts and independent workers rely workers that they will no longer allow heavily on online advertising to attract explicit advertising of sexual services and communicate with clients. In recent in order to protect themselves from research in Vancouver, sex workers who liability. Many sites have forbidden both are MSM described how important online acronyms and more straightforward tools had become after outdoor sex work descriptions, forcing sex workers to strolls had been shut down, particularly resort to euphemistic descriptions of the ability to follow up on initial email responses to ads with webcam meetings to screen potential clients before meeting 144 Chris Atchison, Cecilia Benoit, Patrick them in person.143 The restrictions on Burnett, Mikael Jansson, Mary Clare Kennedy, Nadia Ouellet, and Dalia Vukmirovich, “The third party advertising are also a particular Influence of Time to Negotiate on Control problem for im/migrants, irrespective of in Sex Worker-Client Interactions,” Global immigration status, who rely on others Network of Sex Work Projects’ Research for Sex Work, No. 14, (September 2015): 1-2. because their English literacy is limited. 145 This is apparent on review boards and confirmed by many sex workers and sex b) Stymies Boundary-Setting, Effective worker serving organizations, including Communication, and Screening SWOP. See, for example, Emma M. Wooley, “New prostitution law could force sex workers off the internet,” Globe and Mail, July 16, 2014, http://www.theglobeandmail.com/ technology/digital-culture/new-prostitution- 143 The Loss of Boystown; Implications for Male law-could-force-sex-workers-off-the-internet/ Sex Workers, 12-13. article19630815/
Pivot Legal Society · Page 61 what they offer. At least one Canadian where sex workers can communicate men’s site, squirt.org, informed site with each other, including about good users in 2015 that the website would no and bad dates and tips on how to longer tolerate any advertising of sexual work more safely. They are important services for sale.146 (Several Canadian platforms for creating community print publications that advertise sexual among independent sex workers, who services, including Toronto’s NOW often work in isolation. Magazine and Vancouver’s Georgia Straight, continue to defy the Sex workers with individual pages on advertising ban.) review board websites have until recently supported one other by using banner Attempts to skirt the advertising ads on the tops of pages to recommend prohibition revive dated measures, with other sex workers they know. Banner ads some sex workers reverting to posting assisted sex workers in getting “good” ads that say they seek compensation in clients – clients who were pre-screened exchange for their time and and reputable – and more work. Many sex companionship only. Others have turned workers have stopped this practice for to personal ads and dating sites, instead fear of attracting third-party advertising of platforms that explicitly allow posting charges and are now seeing decreased of adult entertainment or sexual services earnings. Some also no longer advertise ads, where they risk being flagged and that they will work together with others.147 taken down if their postings are too explicit. In all these situations, the Non-profit sex worker-serving potential for poor communication and organizations also use these boards (and client misunderstandings is heightened, other non-sex work specific sites like generating anxiety and making it more craiglist.com) to publicize their services difficult for sex workers to mitigate risks. and sometimes to advertise workshops, clinics, publications, social events, legal c) Increases Isolation and Decreases advice, and other information about Access to Service Providers free and low-cost goods and services available.148 With the prohibition on Review boards are websites that carry advertising of sexual services across sex workers’ ads, along with message boards where clients can communicate with each other and rate services 147 Personal communication with Andrea Sterling, PhD candidate, School of they have received. These boards also Criminology and Sociolegal Research, usually have a sex workers-only area University of Toronto, regarding ongoing research, October 30, 2016.
148 SWAN Vancouver Society (2015), Outreach in the Age of Information and 146 Nathaniel Christopher, “Squirt pulls escort Communication Technologies: A Manual services from gay hook up site,” Daily Xtra, for Sex Work Support Organizations October 21, 2015, http://www.dailyxtra.com/ www.swanvancouver.ca/education/. world/news-and-ideas/news/squirt-pulls- escort-services-from-gay-hookup-site-179138
PAGE 62 · Pivot Legal Society a range of Internet platforms, these to children, is unjustifiably overbroad. organizations are afraid that they will Statements made when Bill C-36 was lose outreach opportunities. Some introduced indicate that the actual aim organizations that provide information of this provision is the elimination of sex about safer sex practices and tips for work as a viable occupation, on the basis managing client expectations also fear that it is an inherently harmful practice. they could be targeted for encouraging Instead of reducing harm to those who people to engage in sex work. sell sexual services, prohibiting the advertisement of sex work interferes with What Rights Are Infringed? client negotiations and thereby has the potential to put them at greater risk. The prohibition on advertising is therefore The actual impact of Section 286.4 is to arbitrary and not rationally connected to make it more difficult for sex workers to its ultimate goal. It is difficult to see how enjoy the safer conditions of indoor work this could be justifiable under Section 1 of and to set boundaries with clients about the Charter. the conditions they work under and the services they offer. This flies in the face of the SCC decision in Bedford. Exemption for Sex Workers Because of the communicating and screening functions that advertising serves, the advertising ban results in Immunity: material benefit infringements of sex workers’ Charter and advertising rights under Section 2(b), (freedom of expression), and Section 7, (right to life 286.5 (1) No person shall be liberty and security of the person), in prosecuted for essentially the same manner as the violations caused by the an offence under Section 286.2 communicating provisions. (a) [material benefit from sexual services] if the benefit is derived If the aim of banning advertising of sexual from the provision of their own services is to reduce public exposure to sexual services; or sexually explicit materials, Parliament (b) an offence under Section 286.4 could have chosen to use existing in relation to the advertisement obscenity provisions in the Criminal Code of their own sexual services. to tailor the advertising law to specific circumstances, or to allow for the use of local bylaws to control things like signage, Immunity — aiding, abetting, etc. as is done in New Zealand. Banning all (2) No person shall be prosecuted for advertising, including advertising that aiding, abetting, conspiring or attempting is not offensive, only available to those to commit an offence under any of actively seeking it, and not accessible Sections 286.1 to 286.4 or being an
Pivot Legal Society · Page 63 accessory after the fact or counselling a industry, putting sex workers under person to be a party to such an offence, increased scrutiny and increasing their if the offence relates to the offering or physical and economic insecurity. Under provision of their own sexual services. the new law, working outside is just as dangerous as it was in the past, and What Does the Law Say? working inside is not viable for anyone wanting to do sex work who is not already well-resourced and established. Sex workers are explicitly granted immunity from charges for benefitting from the sale of their own services, It is difficult to square this reality and from charges for advertising with the Bedford decision and Charter their own sale of sexual services as guarantees of our rights to freedom discussed above. Section 286.5 of the of expression and association, liberty, law explicitly grants “immunity” to safety, the presumption of innocence, sex workers and says that they “will and equality. There is little doubt that not be prosecuted,” reinforcing the the PCEPA is unconstitutional and understanding that the acts described actively prevents people who sell or are wholly illegal and sex workers are trade sexual services from enjoying simply in a special category in regard their fundamental Charter rights. Sex to them. This is an extraordinarily workers remain very hopeful that the unusual formulation in criminal law, current federal government will engage where immunity is normally granted in law reform and repeal the PCEPA and 149 on a rare and discretionary case-by-case other laws that criminalize sex work. basis, most frequently to encourage In the event that this does not happen, participation in a prosecution. It is Canadian sex workers are preparing to worth emphasizing that the law makes bring a new constitutional challenge an otherwise legal activity – consensual to this legislation. sex between adults – a crime when money or something of value is exchanged, even if coercion of any kind is absent and neither party experiences any physical emotional, or psychological injury.
Conclusion
The PCEPA has been mischaracterized as targeting clients and exploitive third parties without criminalizing sex workers 149 For example, ss. 213(1)(a) and (b) of the and others who may enhance their Criminal Code prohibit sex workers from safety. In fact, the new law has resulted impeding vehicular traffic or pedestrians in sweeping criminalization of the sex entering premises in order to speak with potential clients.
PAGE 64 · Pivot Legal Society work.150 This chapter looks at the legal definitions of trafficking and examines False Equation: how the politicization of trafficking enforcement in Canada has impacted The Conflation those involved in sex work. of Trafficking International and Sex Work Recommendations on Enforcement
For more than two decades, sex Human Trafficking workers and human rights activists Is Not Sex Work have strived internationally to disentangle the discourse around “Human trafficking” figures prominently sex work from trafficking in order to in the public discourse about sex work achieve real progress in protecting in Canada. In media reporting and sex workers’ rights and preventing government policies, trafficking is often trafficking as a human rights abuse.151 conflated with sex work and used to The UN Global Commission on HIV equate all transactions involving sex with and the Law recommends that States forced sexual services and child sexual “enforce laws against all forms of child exploitation. This discourse ignores the sexual abuse and sexual exploitation, fact that the vast majority of people who clearly differentiating such crimes sell sex in Canada do so of their own from consensual adult sex work and volition as a way of earning income. They ensure human trafficking laws are are not “trafficked,” according to the used to prohibit sexual exploitation, definitions provided under international as opposed to consensual sex work.”152 or Canadian law. The reframing of The UN Special Rapporteur on consensual sex work as trafficking Violence against Women has noted endangers sex workers, particularly the need to ensure that “measures to those who are im/migrants to Canada, by subjecting them to intensified scrutiny from law enforcement and immigration 150 A Clancey, N Khushrushahi & J Ham, “Do officials and by putting legal tools for Evidence-based Approaches Alienate Canadian Anti-Trafficking Funders?” Anti- prosecuting labour exploitation beyond Trafficking Review, No. 3 (2014): 87-108 their reach. All of this is occurring at [Clancey, Khushrushahi, and Ham]; Realities a time when hundreds of millions of of the Anti-Trafficked. dollars in government funding is being 151 GAATW, Collateral Damage: The Impact of channelled into anti-trafficking programs, Anti-Trafficking Measures on Human Rights Around the World (Bangkok: Global Alliance most of them aimed at eliminating sex Against Trafficking in Women, 2007), http:// www.gaatw.org/Collateral%20Damage_Final/ singlefile_CollateralDamagefinal.pdf
152 Guidance Note on Sex Work,
Pivot Legal Society · Page 65 address trafficking in persons do not exploitative labour situations of all kinds: overshadow the need for effective Immigration and Refugee Protection Act measures to protect the human (IRPA) provisions that apply when people rights of sex workers.”153 are moved across international borders, and Criminal Code provisions that Canada’s Trafficking address coercive labour within Canada. Definitions Do Not Match None of these laws were created to police sex work. They exist to ensure International Standards that no one is coerced or exploited to perform forced or bonded labour. Trafficking is defined in international law by the Palermo Protocol, a United Section 118 of the IRPA was introduced Nations instrument that commits in 2002, before the Criminal Code states to take action to eliminate provisions, and applies to trafficking trafficking in persons and transnational across international borders. This activity involving organized crime.154 provision makes it a crime to knowingly The Palermo Protocol sets out three organize the entry into Canada of persons constituent elements of trafficking: by means of abduction, fraud, deception, 1) the act of transporting or receiving or use or threat of force or coercion. persons; 2) through means involving Committing the offence for profit or some form of force, coercion, subjecting a person to humiliating and deception, or enticement; 3) with the degrading treatment, including with purpose of exploiting another person’s respect to work, health conditions, labour. The Protocol was drafted to or sexual exploitation, are considered apply to all forms of exploitative labour, aggravating factors in sentencing. including agricultural, domestic, and factory labour. The Criminal Code provisions were enacted in 2005 and 2010, in partial Under Canadian law, there are two sets fulfillment of Canada’s obligations as of provisions that address trafficking in a signatory to the Palermo Protocol; they appear in the part of the Criminal Code devoted to restraint of persons, 153 United Nations General Assembly, including through kidnapping and Report of the Special Rapporteur on abduction. Sections 279.01 and 279.011 violence against women, its causes and consequences, Rashida Manjoo, of the Criminal Code make it an offence April 1, 2014, A/HRC/26/38/Add.1, 19. to recruit, transport, transfer, receive, hold, conceal, or harbour a person, or 154 The full name is the Protocol to Prevent, Suppress and Punish Trafficking in exercise control over a person, with a Persons Especially Women and Children, minimum sentence of five years and and the full text is available here: http:// www.ohchr.org/EN/ProfessionalInterest/ the possibility of life imprisonment Pages/ProtocolTraffickingInPersons.aspx. The Protocol supplements the United Nations Convention Against Transnational Organized Crime.
PAGE 66 · Pivot Legal Society on conviction.155 Section 279.02 The PCEPA made minor additions proscribes receiving a material benefit to these Criminal Code provisions: from trafficking in persons, and 279.03 penalizes withholding or destroying • It added mandatory minimum a person’s identification documents. sentences to the offence of For each of these offences, there is a trafficking in persons (Section parallel offence with heavier penalties 279.01), when there are aggravating if the person trafficked is under the circumstances present (five years) age of 18. Section 279.04 sets out the and in all other cases (four years). factors that comprise exploitation and • It modified the offence of obtaining establishes an objective/subjective a material benefit from trafficking test that looks at whether a reasonable in persons (Section 279.02) by person in the position of the allegedly adding the phrase “directly or trafficked person would have felt fear. indirectly” and added a new Before a court, the person’s actual offence for trafficking of minors experience of fear, as well as their with a mandatory minimum actual consent, are irrelevant to a sentence of two years. finding of liability. • It added an offence (Section Exploitation 279.03(2)) for concealing, removing, withholding, or destroying a travel document, whether that document 279.04 (1) For the purposes originated in Canada or elsewhere. of sections 279.01 to 279.03, a person exploits another person if they cause The very inclusion of these changes them to provide, or offer to provide, in the PCEPA, a law that is otherwise labour or a service by engaging in wholly devoted to criminalizing sex conduct that, in all the circumstances, work, is evidence of the conflation of could reasonably be expected to cause trafficking and sex work in legislators’ the other person to believe that their minds. safety or the safety of a person known to them would be threatened if they So Many Provisions, failed to provide, or offer to provide, So Few Convictions the labour or service.
A recent study reviewing all trafficking charges that have proceeded to trial in Canada in the 10 years following the enactment of Criminal Code 155 This is very similar to the s. 286.3 procuring trafficking provisions reveals relatively provisions, with the exception that the few trafficking convictions generally. trafficking provision includes reference to transportation, and the procuring provision A total of 374 trafficking in persons explicitly references sexual services for charges have been laid in all of consideration.
Pivot Legal Society · Page 67 Canada since 2005, resulting in only do not identify as “trafficked” and find 33 prosecutions (29 domestic and 4 the term inconsistent with their lived involving cross-border travel or non- experience.159 According to one study citizens) – an average of just over three informant, a government employee in prosecutions per year and only in the the criminal justice system, provinces of Quebec, Ontario, Alberta, and BC. There have been less than If you have 200-300 20 convictions over this period under investigators working on this either the Criminal Code or the IRPA issue across Canada over a provisions.156 period of multiple years, you would think we would have come up with a few more cases Most cases have not involved provision by now, if it is as big of of sexual services, but rather domestic a problem as presented.160 or other labour. The largest prosecution concerned young Hungarian men held as bonded labourers.157 The study found Researchers hypothesize that there are a only one conviction involving cross- number of reasons for the small number border movement and exploitation of trafficking convictions, including those sexual services under the IRPA (R v involving sexual exploitation, some of 161 Ng),158 and 15 convictions on domestic which are further discussed below. trafficking into sexual exploitation, all One contributing factor may be the of them in Ontario and Quebec. This definition of trafficking, which omits finding is consistent with reports by the explicit element of coercive means organizations serving current im/migrant found in the international definition. This and Indigenous sex workers that most makes “trafficking” less conceptually precise and, ironically, potentially more difficult to prove in court, because the
156 H. Millar & T. O’Doherty in collaboration with SWAN Vancouver Society, The Palermo Protocol and Canada Ten Years On: The 159 Journey of the Butterflies; Realities of the Evolution and Human Rights Impacts of Anti-Trafficked. Anti-Trafficking Laws in Canada, 2015, p. 34 [Miller and O’Doherty]. Information 160 Millar and O’Doherty, 56. collected by Statistics Canada corroborates these findings: Of the 53 completed adult 161 These include the relative difficulty of human trafficking cases, the majority (58%) investigating trafficking, the fact that victims were stayed or withdrawn, while close to are sometimes unprepared or inadequately one-third (30%) resulted in a guilty finding.” supported for trial, the novelty of trafficking See http://www.statcan.gc.ca/pub/85- charges, and the paucity of jurisprudence to 002-x/2016001/article/14641-eng.pdf, p. 4. inform prosecutions, and the high burden of proving beyond reasonable doubt that the 157 R v Domotor, [2011] OJ No 6357 (QL). victims did not consent. The authors examine these in considerable detail, but also provide 158 2008 BCCA 535. High profile cases in BC evidence from focus groups conducted by and Ontario of “sex trafficking” have not SWAN, a community organization serving involved cross border movement, and im/migrant sex workers, indicating that in often convictions have been on “trafficking the organization’s 12-year history in Metro related” offences including procuring, or Vancouver, outreach workers have only charges concerned drugs or violence. encountered one case of trafficking.
PAGE 68 · Pivot Legal Society elements of the offence are unclear to April 2015 sting in Ottawa, 11 people prosecutors and judges alike.162 were arrested, held without contact, and ultimately deported, without Impacts Of Conflating having received any assistance from 164 Sex Work And Trafficking community organizations. Because police have deceived sex workers by setting up fake dates to gain access to a) Deters Reporting of Actual Violence their workplaces (which are oftentimes By Those Who Do Not Identify As their homes), Operation Northern “Trafficked Victims” Spotlight continues to generate fear and mistrust on an ongoing basis. Investigations for trafficking that focus on raiding indoor sex work Anti-trafficking enforcement makes it establishments such as massage more difficult for sex workers and clients parlours and spas, ostensibly to rescue to report labour exploitation, since sex “trafficked victims,” increase the fear workers risk the loss of their income that im/migrant sex workers have of and arrest of their clients. Fear of being police, because these raids can result in exposed as sex workers dissuades many deportations. This creates a situation in migrant sex workers from accessing vital which im/migrant sex workers hesitate services such as health care and makes to report crimes against them that might them hesitant to seek protection through draw attention to their immigration the justice system when they are victims status. These fears are real. In 2006, of crimes, including theft, which occurs police in Vancouver raided 18 massage commonly. parlours to identify victims of trafficking. None of the 78 women arrested were Additionally, more than 40% of the reported to have been trafficked.163 women contacted by the Toronto- based organization Butterfly report As noted above, from 2015 to having experienced abuse at the hands 2016, Operation Northern Spotlight of police. The seizure of condoms as mobilized police forces across Canada to search for trafficking victims. In an
164 Carmelle Wolfson, “Eleven women face deportation following human trafficking 162 Julie Kaye and Bethany Hastie, “The investigation in Ottawa,” Canada OH&S Canadian Criminal Code Offence of News, May 19, 2015, http://www.ohscanada. Trafficking in Persons: Challenges from the com/health-safety/eleven-women- Field and within the Law,” Social Inclusion facedeportation-following-human-trafficking- 3, no. 1 (2015): 1-15, https://www.kingsu.ca/ investigation-inottawa/1003347142/; public/download/documents/33771 Catherine McIntyre, “Migrant sex [Kaye and Hastie]. workers caught up in Ottawa sting facing deportation, further exploitation: activists,” 163 Kim Bolan, “18 massage parlours raided, National Post, May 13, 2015, http://news. 100 arrested,” Vancouver Sun, December 9, nationalpost. com/news/canada/migrantsex- 2006, cited in Clancey, Khushrushahi, and workers-caught-up-in-ottawa-sting-facing- Ham, 87-108. deportation-furtherexploitation-activists.
Pivot Legal Society · Page 69 evidence is common, and in some criminally charged, her phone was seized cases, police have pulled up sex as evidence, and she was forbidden from workers’ dresses to see if they were making calls to anyone, including legal wearing underwear.165 Not surprisingly, counsel. Police seized $10,000 of her a survey conducted by SWAN in money as evidence and as part of their Vancouver in 2013 found that 95% of “ongoing investigation.” It has not been the im/migrants they work with would returned. After a search of her hotel not contact law enforcement if they room, the police came across a photo experienced a violent crime.166 There of her and a friend, and swiftly arrested have been three murders of migrant her friend. Although she was eventually sex workers in Ontario since 2014, released, the woman also lost her and all remain unsolved. housing. During the process, the woman told police that she had recently been b) Reinforces Dangerous Assumptions sexually assaulted and robbed. 167 of Guilt By Association No investigation was undertaken.
Im/migrant sex workers, particularly c) Makes Conviction in Bona Fide those whose English or French language Cases of Coercion More Difficult skills are limited, depend on the assistance of others in very specific Researchers and criminal justice ways to make their work safe and viable. system personnel have suggested They rely on others, informally and in that the anti-trafficking narrative has managerial positions, to help them paradoxically created false expectations place ads and to find workspaces. Yet among prosecutors and courts about under the trafficking and procuring what exploitation looks like, and has laws, they fear implicating their friends contributed to a lack of conceptual clarity and coworkers, who could face serious about the elements of offences. When charges merely for being associates. judges and prosecutors are conditioned to associate trafficking and exploitation Butterfly provided assistance to one with atypical stories of young women woman who was detained for two weeks forcibly confined and sexually assaulted, by police as a “trafficked person”, despite it may be harder to get convictions for her insistence that she was working labour abuses that involve elements of voluntarily. Although she was never deception or coercion, but not necessarily egregious violence or personal indignity. As an example, migrant workers in a
165 Personal communication with Butterfly support person, June 6, 2016. 167 Canadian Alliance for Sex Work Law Reform, 166 SWAN, Zi Teng & ACSA, Chinese Sex “Migrant Sex Workers Live Under Constant Workers in Toronto and Vancouver, 2015, Police Threat,” (Part 5 of Series) Ricochet, p. 28, http://swanvancouver.ca/wp-content/ https://ricochet.media/en/1421/migrant- uploads/2015/05/Chinese-sex-workers-in- sex-workers-live-underconstant-police- Toronto-amp-Vancouver-Ziteng-SWAN-amp- threat?post_id=1485165438479137_16779727 ACSA.pdf 89198400#_=_
PAGE 70 · Pivot Legal Society variety of industries who do not have engaging in work considered sexually work visas are threatened that if they exploitative,169 including escort work and complain about work conditions, their exotic dancing, meaning that disclosure immigration status will be reported. of sex work may jeopardize the legal Acts of blackmail like this, which are immigration status of someone holding common, can amount to trafficking, a temporary work visa or student visa. but they are less salacious than stories of sex trafficking, and they rarely get Canadian Border Services Agency, media attention. Heavy dependence at which has broader powers of entry than trial on testimony by victims about their municipal police, often accompanies perceived fear also makes it harder to other police or local by-law officers to meet the criminal burden of proof beyond raid indoor establishments, under the a reasonable doubt, particularly when guise of “rescuing” the “foreign” women 168 complainants’ credibility is questioned. working there. When this does not result in deportations or immigration d) Misconstrues the Real Experiences charges for the sex workers employed of Racialized Women Doing Sex Work there, it serves to drive clients away, meaning that those who are paid per- “Anti-trafficking” campaigns contribute client rather than per-hour work longer; to racial profiling and are often used it also leaves sex workers with pervasive as a pretext for investigating indoor anxiety about their work. This form of establishments employing racialized racism denies the agency of adult sex women, particularly Asian women with workers capable of making decisions non-Western accents and Indigenous in their own best interests. women. Law enforcement agencies often presume that visible minority According to organizations whose women working in massage or body- mandate it is to provide services and rub parlours are “trafficked,” when in support to im/migrant women doing fact they have Canadian citizenship sex work, including SWAN in Vancouver or permanent resident status or have and Butterfly and the Migrant Sex otherwise migrated legally. Some Workers Project at Maggie’s in Toronto, immigrants have limited English skills, the descriptions of exploitation and of education credentials that are not trafficked persons propagated by the recognized here, or other barriers to anti-trafficking movement do not match employment in Canada; they may also people’s lived experiences. SWAN, simply choose to do sex work because which has operated in Vancouver for they have experience in it or because it offers more attractive remuneration than other work. Restrictions on work visas 169 Section 30(1.4) of the Immigration and Refugee Protection Act empowers the prohibit women coming to Canada from Minister of Citizenship and Immigration to enact regulations or issue instructions to “protect foreign nationals who are at risk of being subjected to humiliating or degrading 168 Millar and O’Doherty; Kaye and Hastie. treatment, including sexual exploitation.”
Pivot Legal Society · Page 71 more than a decade offering services worked with who trade and sell sex to im/migrant indoor sex workers, openly acknowledge that they do so has only encountered one case of sex because of their limited options for trafficking in its history. In focus groups income generation, but they also conducted with SWAN members, a work for themselves — not for pimps participant described im/migrant sex or traffickers. workers as the opposite of trafficked victims: not as “passive, subservient, Some Indigenous activists argue uneducated, backwards, and unable that the direct criminalization of to speak for themselves,” but rather Indigenous persons in street-based as “go getters. Despite all the barriers sex work is an act of continued that they have in the Canadian labour oppression,172 and that the racist market, they still find a way to provide stereotypes of Indigenous women’s 170 for their families.” sexuality underpinning the law serve to normalize violence against e) Domestic “Trafficking” of Indigenous women.173 The focus in Indigenous Women and Girls government and media stories on “traffickers” deflects attention from the Claims that large numbers of systemic causes of Indigenous women’s Indigenous women and girls are migration from home communities to being trafficked in Canada (in the urban settings, rooted in colonization sense that they are coerced or that and racist cultural assimilation policies: they do sex for fear of their safety) are substandard education on reserve, also not supported by empirical data or extreme poverty, insufficient and by the experiences of sex worker- insecure housing, inadequate health serving organizations. Indigenous self- care, lack of vocational opportunities, identified women and two-spirit people violence, intergenerational trauma are overrepresented in street-based sex caused by Canada’s residential school work across Canada, although they also program, and forcible removal of participate in indoor sex work, Indigenous children from their families particularly as independent workers, through so-called “child protection” and informally exchange sex for programs into abusive foster care transportation and other necessities in areas with poor infrastructure.171 The Indigenous women Pivot has 172 N. Sayers, Canada’s Anti-prostitution Laws: A Method for Social Control, 2013, accessed at: http://kwetoday.com/tag/canadas-anti- 170 Realities of the Anti-Trafficked, 12. prostitution-laws/
171 Sarah Hunt, “Decolonizing Sex Work: 173 S. Hunt, Colonial Roots, Contemporary Developing an Intersectional Indigenous Risk Factors: a cautionary exploration Approach,” Selling Sex: Experience, Advocacy of the domestic trafficking of Aboriginal and Research on Sex Work in Canada, Emily women and girls in British Columbia, van der Muellen, Elya M. Durisin and Victoria Canada (Bangkok: Global Alliance Against Love, eds. (Vancouver: UBC Press, 2013), 92. Trafficking in Women, 2010), 27.
PAGE 72 · Pivot Legal Society and adoption situations.174 the same time, the structural inequities arising from poverty and colonization It is unquestionable that Indigenous that intensify vulnerabilities to violence women face violence at much higher are not remedied by using the blunt tool rates than the rest of the population, and of criminal law. For Indigenous women that Indigenous street-based sex workers working in constrained circumstances, experience extraordinary violence, especially those who use substances further evidence that they to cope with physical and psychological 176 are devalued by society.175 It is trauma, removing their source of undoubtedly true for some Indigenous income by criminalizing their clients sex workers that engagement in sex does not make them safer, help meet work is experienced as violence and their immediate needs, or increase their further colonization of their bodies. At future options. Indigenous members of SWUAV, who staunchly support decriminalization, advocate for social programs including higher income 174 Some activists have referred to the assistance rates, better housing, access Government’s role in displacing Indigenous women and girls through both inadequate to detox facilities,appropriate health and misguided “service provision”, child care, and support systems and policy apprehensions, and land seizures for natural resources exploitation as a form development grounded in Indigenous of trafficking: Colleen Hele, Naomi Sayers traditions, as more meaningful and and Jessica Wood, What’s Missing from lasting supports.177 the Conversation on Missing and Murdered Indigenous Women and Girls, accessed at http://the-toast.net/2015/09/14/whats- missing-from-the-conversation-on-missing- Conclusions and and-murdered- indigenous-women/ Recommendations
175 Maryann Pearce, “An Awkward Silence: Missing and Murdered Vulnerable Women We do not advocate for doing away and the Canadian Justice System,” Doctoral with the trafficking provisions, either in Dissertation, Common Law Section, University of Ottawa, 2013; Amnesty the Criminal Code or the Immigration International, “No More Stolen Sisters,” 2004, and Refugee Protection Act. In the rare https://www.amnesty.ca/sites/amnesty/ circumstances that bona fide trafficking files/amr200032004enstolensisters.pdf, Inter-American Commission on Human occurs, legal mechanisms to address and Rights, Missing and Murdered Indigenous Women in British Columbia, Canada, OEA/ Ser.L/V/II. Doc. 30/14 21 December 2014, http://www.oas.org/en/iachr/reports/ 176 Brittany Bingham, Diane Leo, Ruth pdfs/indigenous-women-bc-canada-en.pdf; Zhang, Julio Montaner and Kate Shannon, CEDAW Committee, Report of the inquiry “Generational Sex And HIV Risk Among concerning Canada of the Committee on Indigenous Women In A Street-Based the Elimination of Discrimination against Urban Canadian Setting,” Culture, Health & Women under article 8 of the Optional Sexuality Journal 16, no. 4 (2014): 440-452 Protocol to the Convention on the Elimination http://www.ncbi.nlm.nih.gov/pmc/articles/ of All Forms of Discrimination against PMC4038328/ Women, March 2015, CEDAW/C/OP.8/CAN/1, http://tbinternet.ohchr.org/Treaties/CEDAW/ 177 Statements made by members of SWUAV to Shared%20Documents/CAN/CEDAW_C_OP-8_ Justice Minister Jody Wilson-Raybould, at a CAN_1_7643_E.pdf. meeting in Vancouver, July 18, 2016.
Pivot Legal Society · Page 73 penalize it are necessary. Use of these guaranteeing them labour protections provisions is entirely appropriate in cases and mechanisms to facilitate access to of exploitation, provided they do not provincial human rights codes. become a catch-all for enforcement in situations of consensual sex work, and provided they protect the rights of trafficked persons.
The current misuse of our trafficking laws by police to justify actions against establishments where consensual adult sex work occurs is deeply problematic. Education is required to change attitudes among justice system personnel, including law enforcement officers, so they are used in situations of actual coercion and not to terrorize people who are simply trying to support themselves and their families. Additionally, sex workers are best placed to recognize exploitation when it does occur. Creating an environment where sex workers could enjoy respectful relationships with law enforcement would facilitate the identification and prosecution of genuine trafficking cases. It would also allow clients to report concerns to police without being charged. Sanctuary City policies — that protect im/migrants against deportation or immigration when accessing needed health care, community service providers, and municipal police services — are needed to guarantee that the human rights of all are respected.
Finally, there are situations of labour exploitation that do not involve deception or coercion and fall short of trafficking, but still require fair remedies. A more practical and effective approach to eliminating exploitative conditions for sex workers would be to start by
PAGE 74 · Pivot Legal Society Use Existing Laws to Better Options: Prosecute Acts of Violence A Human Rights The best way to eliminate exploitation is not to create a highly stigmatizing Approach to set of laws that set sex workers apart from the rest of society, but rather to Sex Work use existing Criminal Code provisions to punish perpetrators of violence and exploitation and ensure that sex workers enjoy full and equal access to police and Regardless of its legal status, there labour protections that are theoretically will always be people who do sex work available to everyone in Canada. (See because it is a relatively low-barrier Appendix 2, Existing) option that offers flexibility in terms of hours and higher remuneration relative to other jobs. Sex workers need Don’t Conflate Trafficking immediate access to safer working and Sex Work conditions. The recommendations that follow would lay the groundwork to The trafficking provisions found in the facilitate sex workers’ access to healthy Criminal Code and the Immigration and safe working conditions, to address and Refugee Protection Act should violence and abuse in the sex industry, be maintained as laws of general and to ensure that sex workers’ choices application and applied in all situations and autonomy are respected. of labour exploitation. Sex work (the consensual exchange of sexual services Repeal the Laws That for money) is not trafficking, and trafficking laws should not be used as Criminalize Sex Work a reason to investigate sex workers and sex work businesses unless there is The PCEPA is an unconstitutional set compelling evidence of debt bondage, of laws that imposes more danger and violence, deprivation of liberty, more criminalization on sex workers or similar exploitation. and leaves them with fewer safe options. We recommend repealing all criminal laws that prohibit the purchase Create Appropriate or sale of sexual services by adults Provincial Laws and and that limit adults selling sex from Municipal Bylaws in working with others in non-coercive Consultation with situations. This includes the PCEPA and Sex Workers provisions such as Section 213(1)(a) and (b), which were not constitutionally Decriminalizing sex work would not challenged in Bedford. necessarily mean that there are no
Pivot Legal Society · Page 75 restrictions on sex work – however, activity”, referring to sex work.179 Despite the boundaries on sex work should the promise of funding for programs that be developed with sex workers, can help individuals transition out of sex who are the true authorities in work into other work, most sex worker- their lives and work. Ensuring that led and sex worker support organizations sex workers have access to the across the country that applied were protections afforded all other workers denied funding. In the intervening year, by provincial employment standards at least one organization (Big Susie’s in and occupational health and safety Hamilton, ON) had to close its doors. legislation, along with other laws Many others have struggled through regulating provincial businesses, major funding cutbacks. could help to eliminate workplace injustices. Using municipal bylaws Funding to support “exiting” programs created through community dialogue should never be prioritized above processes that prioritize a human funding to meet sex workers’ current rights approach to when and where sex needs. Harm reduction mechanisms, work takes place is essential, because including bad date lists and provision of using criminal sanctions only serves to safer sex supplies and secure working reinforce stigma. spaces180 reduce the risks experienced by sex workers. Evidence from Sweden Invest in Non-Judgmental has shown that when social service Support Services for provision is contingent upon sex workers Sex Workers exiting the sex industry, harm reduction activities are curtailed. This undermines sex workers’ access to information When introducing the PCEPA, the federal and safer sex supplies, and reduces government also announced that $20 contact between sex workers and million in funding over five years178 would service organizations, making it much be made available to support grassroots harder to identify those in situations organizations dealing with “the most vulnerable,” including “those who want to leave this dangerous and harmful
179 Archived – Statement by the Minister of Justice Regarding Legislation in Response to the Supreme Court of Canada Ruling in Attorney General of Canada v. Bedford et al, Canada News Centre, June 14, 2014, http:// news.gc.ca/web/ article-en.do?nid=853709
178 Josh Wingrove, “Canada’s new prostitution 180 A Krusi, J Chettiar, A Ridgway, J Abbott, laws: Everything you need to know,” S Strathdee, K Shannon, “Negotiating Globe and Mail, July 15, 2014, http://www. Safety and Sexual Risk Reduction with theglobeandmail.com/news/politics/canadas- Clients in Unsanctioned Safer Indoor Sex new-prostitution-laws-everything-you-need- Environments: A Qualitative Study,” AM J to-know/article19610318/. Public Health 102, no. 6 (2012): 1154-9.
PAGE 76 · Pivot Legal Society of exploitation.181 Researchers also It is often said that leaving sex work is found that the prohibitionist narrative not an event but rather a process that underpinning the prostitution laws requires adapting the skills learned in has informed the attitudes of service sex work to other work environments, providers, resulting in increased stigma overcoming social prejudice, and and isolation for sex workers who do explaining gaps in work history.182 For not wish to transition out of sex work. In those who do wish to transition out of short, when exiting is prioritized, crucial sex work, the $20 million fund nationally non-judgmental services and resources is not nearly enough. More funding are unavailable to those that require should also be made available to support them the most. transitioning and skills training programs run by current or former sex workers, Invest in Supports for who best understand the challenges. Low Income Sex Workers – Whether They Want to Recognize the Complex Do Sex Work or Not Realities of Indigenous People Who Sell and Poverty, discrimination, and stigma Trade Sex are constants in the lives of many sex workers. Using criminal laws to deny Narratives about Indigenous people people their income sources is not in sex work tend to focus on their the way to ensure genuine autonomy. overrepresentation and the violence Instead, like all people experiencing they face. Indigenous people are poverty or discrimination, low-income disproportionately represented sex workers – whether they wish to among those who do street-based seek other work or not – need access sex work and engage in transactional to more substantial income assistance sex; Indigenous sex workers Pivot has benefits, safe and affordable housing, worked with say this is due to their lack and culturally appropriate educational of economic opportunities and the fact opportunities and health services, which that sex work is an occupation that does in some cases may include mental health not require formal training. Indigenous supports, drug treatment, and harm people across Canada also have a reduction services. great diversity of experiences and may use sex work as a way of resisting the colonization of their communities
181 Jay Levy, “Impacts of the Swedish Criminalisation of the Purchase of Sex 182 See Julie Ham, “We all have one: Exit on Sex Workers” (paper presented at the plans as a professional strategy in sex British Society of Criminology Annual work,” Work Employment & Society, Conference, Northumbria University, July (2016), doi: 10.1177/0950017016666198, 4, 2011) Available at: http://cybersolidaires. http://wes.sagepub.com/content/ typepad.com/files/ jaylevy-impacts-of- early/2016/09/27/0950017016666198. swedishcriminalisation-on-sexworkers.pdf Abstract
Pivot Legal Society · Page 77 perpetuated through displacement was developed in consultation from lands and the repercussions with sex workers and that respects of the residential school program. and promotes their human rights and safety. New Zealand fully Across Canada, funding for education decriminalized adult sex work in 2003 and supports for Indigenous people on- and instituted a system that places and off-reserve are grossly inadequate. much of the control over the conditions Provincial systems for youth in care, under which sex work takes place in also disproportionately Indigenous, the hands of local municipalities. often do not meet their needs.183 As a result, Indigenous youth often struggle Over the past decade, Research over to support themselves when they try the past decade has suggested that this to escape abusive circumstances. The legal regime has resulted in sex workers federal government should increase having greatly enhanced control over broad-based supports, including through the conditions of their work, including funding to Indigenous communities for their abilities to refuse clients and to self-administered education, vocational insist on condom use. New Zealand sex training, housing programs, income workers report much greater access to assistance, employment programs, and police protection, with vastly increased health and addictions services, based “solve” rates in violent crimes involving in Indigenous traditions. This would sex workers. They also have access to position Indigenous people to decide employment protections, including whether they want to participate in mechanisms to address workplace the sex industry, and if so, under conflicts; the opportunity to work in what conditions. small sex worker-run collectives; and the ability to leave sex work having Learn from experienced little or no violence, and Other Jurisdictions without a criminal record. New Zealand sex workers have successfully initiated cases against managers for sexual New Zealand provides a model for harassment184 and against clients for decriminalization of sex work that wilfully removing condoms.185
Because New Zealand has a unitary 183 Reports by the BC Representative for legal system that is different from Children and Youth, including The Placement Canada’s federal system, (which divides of Children and Youth in Care in Hotels in BC, May 13, 2016; A Review of Youth Substance law-making powers between the Use Services in BC, May 26, 2016; A Tragedy federal and provincial governments) in Waiting: How BC’s mental health system decriminalization in Canada would failed one First Nations youth, September 8, 2016; Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care, An Aggregate Review, October 4, 2016, all 184 Taking the Crime Out of Sex Work. available at https://www.rcybc.ca/reports- and-publications/reports 185 DML v Montgomery.
PAGE 78 · Pivot Legal Society necessarily look somewhat different. Furthermore, care would need to be taken to ensure that municipalities do not enact bylaws that replicate the harms of the criminal laws. Any law reform program should only be undertaken with the direct involvement and input of sex workers, who are the experts in their own health and safety.
Work on Undoing the Stigma That Surrounds Sex Work, Through Law Reform and Education Programs
The greatest commonality between sex workers in Canada is the stigma they face. Most sex workers live in fear that their work will be revealed to family and neighbours. This stigma perpetuates conditions that have allowed predators to murder, rape, and abuse sex workers with impunity, because police failed to investigate and prosecute these crimes. Education is also needed to dismantle negative stereotypes about sex workers, but law reform is essential. Changing the law would be a first step towards undoing the stigma and accepting sex work as an occupation and people who do sex work as full members of our communities.
Pivot Legal Society · Page 79 and express moral condemnation. The penalty of incarceration does not Appendix 1: end when a convicted person regains their liberty. The stigma of a criminal Key Provisions sentence leaves a lasting imprint on a person’s life, potentially barring from theCharter them from participating in a variety of activities and careers. Because of the of Rights and gravity of criminal sanctions, criminal laws are held to a high standard. In Freedoms order to justify depriving someone of liberty or tainting their reputation, the purpose of a criminal law must Human rights protections are be of sufficient importance. entrenched in the Charter of Rights and Freedoms,186 a part of Canada’s The Charter rights that may be engaged Constitution. Because all laws in Canada by the PCEPA are set out below. Section must comply with the principles set 1 of the Charter, which establishes the out in the Constitution, laws that do balancing test for evaluating rights not conform with the Charter can be breaches, is described last, as it is applied challenged through litigation. Canadian last in Charter cases, only after the rights courts are empowered to strike down infringement has been made out. unconstitutional laws and to order the government to take other remedial Section 2(b) – The Right to actions to rectify the harms caused Freedom of Expression by the laws.
2. Everyone has the following When courts evaluate the fundamental freedoms: constitutionality of laws, they look to evidence of the impacts of those … laws and to the stated objectives of the laws. A law’s negative impacts on individuals and their rights are (b) freedom of thought, belief, balanced against its objectives and opinion and expression, including any social value derived from the law. freedom of the press and other Criminal laws are used not just to media of communication; control and regulate social behaviour, but also to denounce specific actions The right to freedom of expression has been historically viewed as one of the most essential elements of Canadian 186 Charter of Rights and Freedoms, Part I of democracy. Expression has been the Constitution Act, 1982, being Schedule construed broadly to encompass any B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. act that conveys or attempts to convey
PAGE 80 · Pivot Legal Society meaning through the use of words, Section 2(b) also protects a general gestures, or actions, with the exception right to receive communications.191 of acts and threats of violence.187 The SCC has recognized a right to Canadian courts have generally taken receive commercial information, an expansive approach to interpreting subject to restrictions to protect expression. For example, the Ontario vulnerable members of the public;192 Court of Appeal in 2007 found that lap it has also recognized the right to dancing could be considered a form of access government information, albeit expression; however, it also concluded in a limited manner, under the right that the government had a justifiable to freedom of expression.193 reason for infringing the right to freedom of expression by enacting bylaws that The test for a Section 2(b) violation asks: restricted lap dancing.188 1. Is the act for which a restriction A law that limits expression either is claimed expression under through its purpose or its effects Section 2(b)? may be found to violate Section 2(b). 2. Did the government limit Unacceptable limits to expression that expression? can take the form of restrictions on content or form. Courts have stated 3. If yes, is the limitation justifiable that the Section 2 assessment should under Section 1 of the Charter? remain neutral about the content of expression at the infringement phase, A limitation on expression may be leaving any evaluation of expression unacceptable because it frustrates “the to the Section 1 justification, but pursuit of truth, participation in the that approach has not always been community, or individual self-fulfillment evident in individual judgments. In and human flourishing,”194 however, one of Canada’s seminal freedom of limitations on forms of expression with expression cases, the SCC found that mundane consequences have also been commercial expression, including declared unconstitutional. Generally, advertising, is protected.189 However, the SCC has recognized the limitations commercial expression has not been on expression as reasonable and valued as highly as non-commercial justified when speech has been used to expression by the courts.190
191 R. v. National Post, 2010 SCC 16, [2010] 1 SCR 477, at para. 28 187 Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927 [Irwin Toy]. 192 Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 SCR 232. This ruling is 188 Adult Entertainment Association of similar to Irwin Toy. Canada v. Ottawa (City), 2007 ONCA 389. 193 Ontario (Public Safety and Security) v 189 Irwin Toy. Criminal Lawyers’ Association, 2010 SCC 23.
190 Irwin Toy. 194 Irwin Toy.
Pivot Legal Society · Page 81 promote violence195 or otherwise impact pursuit of his or her ends.”198 The Court the rights of others. in Mounted Police went on to say,
… In this way, the guarantee Section 2(d) – The Right of freedom of association to Freedom of Association empowers vulnerable groups and helps them work to 2. Everyone has the following right imbalances in society. fundamental freedoms: It protects marginalized groups and makes possible … a more equal society.
(d) freedom of association. In Ontario (Attorney General) v Fraser,199 a case about separate legislative Section 2(d) protects the rights of schemes for migrant farm workers, the everyone to form associations or majority of the SCC unambiguously held organizations, provided those groupings that the test to find an infringement are not otherwise illegal, and to work of Section 2(d) in the labour relations together. In essence, the right to context is whether the impugned law or freedom of association guarantees that state action has the effect of making it any act that can be done individually can impossible to act collectively to achieve be done collectively or in association workplace goals. with others.196 This section has been applied mostly in the context of the Section 7 – The Right formal collective organizing and to Life, Liberty and bargaining activities of trade unions, Security of the Person so jurisprudence on the rights of individuals working together more 7. Everyone has the right to life, informally is scant. However, the SCC in liberty and security of the person and Mounted Police Association of Ontario v. the right not to be deprived thereof Canada (Attorney General)197 reiterated except in accordance with the that a fundamental purpose of Section principles of fundamental justice. 2(d) is to protect the individual from “state-enforced isolation in the Section 7 of the Charter guarantees the right to life, liberty and security
198 Mounted Police Association of Ontario v 195 R v Keegstra, [1990] 3 SCR 697 [Keegstra]. Canada (Attorney General), [2015] 1 SCR 3, para. 58 https://scc-csc. lexum.com/scc-csc/ 196 Canadian Egg Marketing Agency v. scccsc/en/item/14577/ index.do. Richardson, [1998] 3 SCR 157. 199 Ontario (Attorney General) v. Fraser, 2011 197 [2015] 1 SCR 3, at para. 58 SCC 20.
PAGE 82 · Pivot Legal Society of the person – the rights to be safe, or serious psychological suffering.206 including from threat of death,200 Increasingly, Section 7 is being viewed to be free from arbitrary arrest and as “the new Section 15,” since more detention, and to exercise autonomy in decisions recognizing the rights of making fundamental life decisions, 201 marginalized people have been made particularly those that concern bodily on the basis of Section 7 than on the integrity.202 These include choices equality rights section of the Charter. that are “fundamentally or inherently personal… going to the core of what it There are circumstances in which means to enjoy individual dignity and governments are permitted to engage 203 independence.” The right to liberty in violations of the right to life, liberty may engage quality of life issues, and security of the person to uphold although these have mostly been justice and maintain public order. As an explored to date in the health context, example, a person may be sentenced to as in the recent Carter case on assisted imprisonment, but only if they have been 204 suicide. The right to security of the convicted following a fair trial. These person involves control over one’s bodily infringements are only allowed when 205 integrity free from state interference, they are in keeping with the principles but at a more basic level, it also involves of fundamental justice. For example, safety. It can be engaged by government laws cannot infringe Section 7 rights: regulations or actions that impact upon when the provisions are “arbitrary,” an individual’s wellbeing, including meaning there is an insufficient causal any state action that causes physical connection between what the law prohibits and what it aims to achieve; when the provisions are “overbroad,” meaning they criminalize activity beyond what they are intended to prohibit; and when the harmful effects of the challenged provisions on life, liberty or security of the person are
200 Carter SCC. “grossly disproportionate” to the beneficial objectives intended by the law, 201 Blencoe v. British Columbia (Human Rights meaning the punishment is too harsh Commission), [2002] 2 SCR 307 [Blencoe]; see also Carter SCC, with respect to in relation to the activity penalized. medical decision-making at para. 30, citing The test for a Section 7 breach requires with approval Carter v. Canada (Attorney General), 2012 BCSC 886, para. 1302.
202 Godbout v. Longueuil (City), [1997] 3 SCR 844, para. 66. See also Morgentaler, 402. 206 New Brunswick (Minister of Health and 203 Godbout, para. 66. Community Services) v G (J), [1999] 3 SCR 46, para. 58; Blencoe, paras 55-57; Chaoulli 204 Carter SCC. v Quebec (Attorney General), 2005 SCC 35, para. 43, per Deschamps J.; para. 119, per 205 Rodriguez, at pp. 587-88 per Sopinka J., McLachlin C.J. and Major J.; and paras. 191 referring to Morgentaler. and 200, per Binnie and LeBel JJ.).
Pivot Legal Society · Page 83 that claimants show: onus clause – any legal provision that puts the burden on an accused to prove their 1. that the law interferes with, or innocence, instead of requiring the state to deprives them of, their life, liberty prove guilt – is in breach of this principle. or security of the person, and Canada’s criminal law contains only a few reverse onus provisions, mostly to do 2. that this deprivation does not with bail conditions when an accused has accord with the principles of a prior criminal record. Previous reverse fundamental justice. onus provisions concerning possession In theory, the government must respond of drugs and precious metals have been by providing a Section 1 justification. struck down for offending Section 11(d).207 In fact, it is unusual that a Section 7 violation is found to be justified under Section 1, since law or actions that Section 12 – Cruel and violate the principles of fundamental Unusual Treatment justice are rarely found to be in the public good. There often appears to 12. Everyone has the right not to be be an overlap between the Section 7 subjected to any cruel and unusual fundamental justice analysis and the treatment or punishment. Section 1 justification analysis, because upholding justice and the rule of law is a Section 12, the right not to be subjected fundamental consideration of democracy to cruel and unusual punishment, sets and social equity. As a result, after courts limits on how the state may punish consider both aspects of the Section 7 offenders. Traditionally under the test, they often engage in a somewhat common law, judges were given cursory Section 1 analysis. discretion to consider both the crime and the individual’s personal circumstances Section 11 – Presumption when they sentenced convicted persons of Innocence to prison terms. Mandatory minimum sentences associated with certain offences require that any person 11. Any person charged with an offence convicted of a particular crime – has the right ... usually one that involves violence or use of a fire-arm, or that is a repeat (d) to be presumed innocent until offence – serve a certain minimum time in proven guilty according to prison. Sections 286.1(2), 286.2(2) and law in a fair and public hearing 286.3(2) — all offences involving provision by an independent and of sexual services by persons under the impartial tribunal age of 18 — prescribe mandatory minimum sentences. The right to the presumption of innocence is a fundamental and fairly self-explanatory
tenet of our justice system. Any reverse 207 The material benefits provision, s. 286.2 of the PCEPA, contains a reverse onus clause.
PAGE 84 · Pivot Legal Society Mandatory minimum sentences (2) Subsection (1) does not preclude have been successfully challenged any law, program or activity that has as as unconstitutional in Canada. In R v its object the amelioration of conditions Nur208 and R v Lloyd,209 the Supreme of disadvantaged individuals or groups Court of Canada ruled that “one size fits including those that are disadvantaged all” mandatory minimum formulations because of race, national or ethnic origin, could be unconstitutional when they colour, religion, sex, age or mental or resulted in incarceration for infractions physical disability that were minor and caused little harm (as in the case of Nur, where the Section 15(1) of the Charter guarantees accused possessed but did not use the rights of everyone in Canada to a loaded weapon, and in the case of be treated equally under the law and Lloyd, where the accused possessed not denied enjoyment of benefits as a a quantity of drugs greater than result of arbitrary or irrelevant factors. designated for personal use). Mandatory In particular, it seeks to eliminate minimums engage equality rights discrimination based on stereotypes by by also disproportionately affecting laying out a number of grounds on the offenders who are Indigenous and who basis of which differential treatment are disadvantaged in terms of personal is prohibited: race, national or ethnic resources and education. A sentence origin, colour, religion, sex, age or mental is cruel or unusual when the average or physical disability. Jurisprudence has Canadian would find it abhorrent or expanded these grounds to include intolerable in the circumstances. The other “analogous” or similar grounds,210 SCC ruled that those circumstances for example, sexual orientation. were met in these two cases.
Equality law in Canada recognizes Section 15 – The Right substantive discrimination: laws or to Equality government actions disproportionately affecting one segment of the population, 15. (1) Every individual is equal before even though they may appear to be and under the law and has the right to neutral, discriminate in effect. If a law the equal protection and equal benefit treats everyone formally the same, but of the law without discrimination and, in overwhelmingly impacts an identifiable particular, without discrimination based group without a bona fide reason for on race, national or ethnic origin, colour, doing so, it is discriminatory. religion, sex, age or mental or physical disability. After years of grappling with complicated formulations about how
208 2015 SCC 15 (Nur). 210 Andrews v Law Society of British Columbia, [1989] 1 SCR 143; Egan v Canada, [1995] 2 209 2016 SCC 13 (Lloyd). SCR 513.
Pivot Legal Society · Page 85 to weigh discrimination and its effects, 4. If not, can the Section 15 infringement Canadian courts have settled on a be justified under Section 1? test for Section 15 designed to assess whether claimants have been denied Until now, marginalized groups have not substantive equality and if so, whether fared well in Section 15 claims. In fact, that denial can be justified. Previously, the majority of Section 15 claims have those bringing Section 15 claims were been rejected. No court in Canada has required to demonstrate the type of yet accepted economic circumstance discrimination they had experienced or poverty as an analogous ground for by comparing themselves to similarly discrimination.212 Homelessness has situated groups, who differed in respect also been rejected as an analogous of a single identifying factor or trait. ground.213 In Nova Scotia (Workers’ The SCC abandoned the use of “mirror Compensation Board) v. Martin,214 the comparator groups” because it resulted Court acknowledged that economic in artificial and formulaic analyses that disadvantage may be related to dignity, often produced a finding of formal but ruled that the claimant must equality, but failed to capture the real provide some explanation as to how intersectional discrimination that dignity was engaged in the individual complainants experienced. The current case. Occupation has never been 211 Section 15 test requires a contextual recognized as a prohibited ground for analysis that asks: discrimination. Thus, discrimination is usually not easy to prove, even in intuitively appropriate cases. 1. Does the law create a distinction based on an enumerated or analogous ground, either directly or through Section 1 – Limits on Rights its disparate impacts on a particular Must Be Justifiable in a Free group of persons? and Democratic Society
2. Does the distinction create a 1. The Canadian Charter of Rights and disadvantage by perpetuating Freedoms guarantees the stated rights prejudice or stereotyping? and freedoms subject only to such 3. If the answer is yes, does the distinction arise from an affirmative
action or other program designed 212 Gosselin v Quebec (Attorney General), to ameliorate pre-existing 2002 SCR 84.
disadvantage? Section 15(b) 213 Polewsky v Home Hardware Stores, (2003), explicitly allows such programs in 66 OR (3d) 600 (ONCA); Tanudjaja v the name of promoting equality. Canada (Attorney General), 2014 ONCA 852, leave to appeal to SCC denied June 25, 2015.
214 Nova Scotia (Workers’ Compensation 211 Withler v Canada (Attorney General), [2011] Board) v Martin; Nova Scotia (Workers’ 1 SCR 396. Compensation Board) v Laseur, 2003 SCC 54.
PAGE 86 · Pivot Legal Society reasonable limits prescribed by This can be measured in part law as can be demonstrably justified by how effective a legislative in a free and democratic society. provision is in achieving its goals.
2. Is it minimally impairing of the As noted previously, the Charter does right in question or well tailored not protect rights absolutely; it allows to its target, or does it go too far? the government to restrict some rights when necessary to protect other rights 3. Do the benefits from the law or action or when allowing unregulated exercise outweigh its negative impacts, or is of rights could cause harm to others. the net result greater harm than good? For example, the courts have found that restricting hate speech215 and creating The standard for legislative drafting bubble zone laws to prevent anti-choice is not perfection; it is reasonableness. protesters from blocking abortion clinic Courts must accord legislatures a high entrances216 do infringe the right to degree of deference in terms of the laws freedom of expression. However, those they enact. There may be a number of infringements are considered justifiable possible solutions to a particular social in our society, because they protect problem, and courts may decline to vulnerable minorities and ensure that interfere with a “complex regulatory women can enjoy bodily autonomy response” to what is perceived as a and reproductive rights. social ill.217
Courts undertake the Section 1 analysis only after a rights violation has been found. The test is essentially a weighing of the rights of the individual against the values of society as a whole. This balancing test has two primary parts. The first considers whether the legislation or government action in question has a pressing and substantial objective. The second assesses proportionality by comparing the object and its actual effect, asking three questions of the legislation (or government action):
1. Is it rationally connected to the goal it seeks to achieve?
215 Keegstra.
216 R v Spratt; R v Watson, 2008 BCCA 340, 217 Alberta v Hutterian Brethren of Wilson leave to appeal to SCC denied June 2009. Colony, 2009 SCC 37, para. 37.
Pivot Legal Society · Page 87 The Subcommittee on the Solicitation Laws of the Parliamentary Standing Appendix 2: Committee on Justice and Human Rights in 2006 set out the range of Existing Criminal criminal laws that should protect sex workers from abuse by third parties Code Provisions and others in its report, The Challenge of Change.219 Among the provisions on Violence they identified were:
and Exploitation • uttering threats (section 264.1),
• intimidation (section 423),
There is nothing novel in asserting that • theft (section 322), robbery creating special sex work laws does not (section 343), effectively enhance sex workers’ safety. The Special Committee on Pornography • extortion (section 346), and Prostitution (the Fraser Committee) • kidnapping and forcible in 1985 stated: confinement (section 279), The fact that we have special • bodily harm (section 269), laws surrounding prostitution assault (sections 265 - 268), does not, however, result in curtailing all of the worst • sexual assault (sections 271 – 273), and aspects of the business, or in affording prostitutes the same • criminal harassment, colloquially protection as other members known as stalking (section 264) of the public. Indeed, because • trafficking in persons there are special laws, this (section 279.01 – 279.03) seems to result in prostitutes being categorized as different from other women and men, The Subcommittee also identified a host less worthy of protection of existing Criminal Code provisions by the police, and a general dealing with disturbances, indecency, attitude that they are and organized crime intended to protect second class citizens.218 communities from crime.
218 Special Committee on Pornography and 219 Challenge of Change, Appendix D: Non- Prostitution, Pornography and Prostitution Exhaustive List Of Generic Provisions in Canada, Report of the Special Committee Within The Criminal Code Available To on Pornography and Prostitution (Ottawa: Protect Prostitutes, Children and Youth, The Committee, 1985), Vol. 2, 392. and Communities.
PAGE 88 · Pivot Legal Society Justice Himel, the trial judge in the 2010 Bedford decision, referred to these reports and their suggestions that more needs to be done using existing criminal laws to address exploitation of sex workers. She rejected the idea that striking down the laws would create a “legal vacuum” or expose the public to harm, finding rather that “the danger faced by prostitutes greatly outweighs any harm which may be faced by other members of the public.” 220
220 Bedford ONSC, paras. 518 – 534.
Pivot Legal Society · Page 89 About the red umbrella
The red umbrella was first used as a symbol for sex worker solidarity at the 49th Venice Biennale of Art, Italy, 2001. Italian sex workers marched through the streets of Venice with red umbrellas as part of the “Prostitute Pavilion”and CODE:RED art installation by Slovenian artist Tadej Pogacar. The red umbrella march drew attention to the bad work conditions and human rights abuses they faced. Four years later the red umbrella was adopted by the International Committee on the Rights of Sex Workers in Europe where it became the emblem for resistance to discrimination. Since then the red umbrella has become the international icon for sex worker’s rights around the world. It symbolises protection from the abuse and intolerance faced by sex workers everywhere, but it is also a symbol of their strength.
http://www.nswp.org/timeline/event/red-umbrella-first- used-venice-italy-symbol-sex-worker-solidarity
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