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BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform

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BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform Full Report PIVOT LEGAL SOCIETY Danica Piche photo. List of contributors Authors Dedication Creative content Mary Childs, Sarah Ciarrocchi, Cristen To all the people who gave their time, Barry Calhoun, Brad Hornick, Tracie Gleeson, John Lowman, Katrina Pacey, energy and expertise to this important Park, Danica Piche, Paul Ryan, Jaya Francois Paradis, Danica Piche, Emily project. In particular, to the inspiring Surjadinata, Peter Wrinch. Rix, Elaine Ryan, Elin Sigurdson, group of sex workers who courageously Krista Sigurdson, Laura Track, Maia spoke out about the conditions of their Images on covers and headers Tsurumi, Megan Vis-Dunbar, Lisa work and their lives and contributed Barry Calhoun. Weich. their knowledge, insight and vision for law and social reform. Funders Contributors Law Foundation of B.C., Rielle Capler, Kelly Crowe, Debbie, Acknowledgements Law Commission of Canada, Caily DiPuma, Elisabeth Finney, All the staff at Pivot Legal Society, Canadian Bar Association. Lauren Gehlen, Stacey Grayer, Asian Society for the Intervention of Ashleigh Keall, Thomas Kerr, DJ, Jeff AIDS (ASIA), Boys ‘R’ Us, Downtown Pivot Legal Society Langlois, Laurie, Joel Lemoyre, Chris Eastside Women’s Centre, Lifeskills PO Box 4438 STN Terminal Misura, John Richardson, Shari, Julie Centre, ORCHID Project, Portland Vancouver, B.C. V6B 3Z8 Shugarman. Hotel Society and the Potluck Cafe, Prostitutes Empowerment Education Copyright Pivot Legal Society Editors and Resource Society (PEERS), June 006 Naomi Brunemeyer, Karen Mirsky, Prostitution Alternatives Counselling Sean Rossiter. and Education Society (PACE), Sex To view a pdf of the Abridged Version Workers Action Network (SWAN), the of Beyond Decriminalization, go to Legal reviewers Gathering Place, Women’s Information www.pivotlegal.org Carolyn Askew, Kate Blomfield, Kelley and Safe House (WISH). Bryan, Catherine Dauvergne, Jess ISBN: 0-9736445--4 Hadley, John Kilcoyne, Chris Sprysak, Ondine Snowdon. PIVOT LEGAL SOCIETY BEYOND TABLEDECRIMINALIZATION: OF CONTENTS Sex Work, Human Rights and a New Framework for Law Reform EXecUtiVE SUmmary 8 Part 1: IntrodUction 10 Pivot’s sex work law reform project 0 Scope of this report Section 1: Pivot’s approach to law reform Section 2: Pivot’s research methods 3 i. Project staff and volunteers 3 ii. Methodology 3 Research objectives 3 Data collection 4 Table : Discusssion groups and education session structure 5 Expertise of sex workers 6 Recruitment of project participants 6 Project participants 6 Data analysis 7 Section 3: Current working conditions in various areas of the sex industry 8 i. Street-level sex work (women) 8 Safety 9 Work areas 9 Law enforcement 0 Marginalization 0 Health 0 Financial security 0 ii. Street-level sex work (men) Safety services Physical and mental health iii. Out-call/escort Health Stress 3 Harrasment 3 Safety 3 Management and services 4 Licensing 5 iv. In-call/massage 5 Management and working conditions 5 Complaints 6 Safety 7 Health 7 Privacy 8 Work and income 8 Law enforcement 8 Forced labour 8 Financial arrangements and wage structure 9 1. Financial exploitation and sexual slavery 9 2. Fee splitting (i. Worker receives a base amount per client and all tips, ii Fees for both the 9 introduction and the sexual services are split between worker and owner on a percentage basis), 3. Hourly wage 30 4. Tips only 30 3 PIVOT LEGAL SOCIETY Part 2: MUnicipal LAW and SEX WorK 32 Licensing and sex work 3 i. Laws governing municipal powers in B.C. and Alberta 3 ii. B.C.’s Local Government Act 33 iii. Do the LGA and Community Charter apply in Vancouver? 33 iv. Discretion to grant and refuse business licenses in Vancouver 34 v. Inspections by the City 35 vi. Municipal governance over businesses that provide sexual services in Vancouver, Calgary and Edmonton 36 vii. Vancouver’s licensing by-laws 37 Vancouver’s business prohibition by-law 38 Body rub parlours 38 Dating services 39 Health enhancement centres 40 Social escort service 40 Massage parlours and steam baths 4 viii. Licensing fees 4 Challenging high licensing fees and restrictive by-laws 4 Body rub parlour licenses in Vancouver 43 Body rub parlour licenses in Edmonton and Calgary 44 ix. Views on the “quasi-legal” status of sex industry businesses 45 x. Licensing restrictions – criminal record 49 xi. Do sex workers want to participate in a licensing system? 49 Individual licensing – street workers 50 Individual licensing – escorts 5 Individual escort licensing in Edmonton 53 Business licenses for establishments consisting of more than one sex worker 55 xi. Privacy 56 xii. Business hours 57 xiii. Advertising by-laws 59 xiv. By-law enforcement 60 xv. Discretion of licensing body 6 xvi. Licensing schemes must promote choice 63 xvii. Consultation with sex workers 64 xviii. Municipal law and sex work recomendations 64 Zoning and sex work 65 i. Zoning laws 65 ii. Vancouver’s zoming by-law 65 iii. Regulating zoning districts 67 iv. The current situtuation for sex workers 68 v. Sex workers views on zoning 69 vi. Incorporating sex industry businesses into the existing zoning scheme 70 vii. Prostitution as a distinct “use” 7 Dedicated prostitution zones 7 viii. Home-based sex industry businesses 73 ix. Other concerns relating to the issue of zoning 74 Safety 74 Autonomy 75 Privacy 76 Sensitivity to children 77 x. Zoning and sex work recommendations 77 4 BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform Part 3: EMPLOYMENT AND LABOUR LAW 78 Section 1: Employment standards and protections 80 i. Sex workers as employees and independent contractors 8 Current conditions in the sex industry 8 Sex workers as employees 8 ii. Employees and employment standards 85 Hiring employees 85 Hiring practices 85 Age of workers 88 Nature of employment 89 Emplyment contracts 89 Control over services provided 90 iii. Financial arrangements and wage structure 96 Financial arrangements 96 What type of wage protections do sex workers want? 97 Hours of work, overtime, statutory holidays, vacation time and sick days 98 Work-related supplies, expenses and clothing 0 Training 03 Employer record keeping 06 iv. Termination of employment 08 Section 2: Workers’ compensation and occupational health and safety 09 i. Workers Compensation Act 09 Sex workers and workers’ compensation 0 Types of compensation for sex workers Evidentiary issues 4 Serious or wilful misconduct 5 Condom use and “wilful misconduct”: the New Zealand approach 6 HIV-positive workers and “wilful misconduct:” the Nevada approach 7 Disclosure of HIV-positive status 8 Accident 8 xiii. Mandatory diease testing 9 Privacy concerns 0 ix. Occupational Health and Safety Regulations Training Safe workplaces and violence prevention 3 Drug and alcohol use in the workplace 6 Hazardous substances 8 Supplies 9 Hygiene 30 Public health 3 Section 3: Unionization 131 i. Do sex workers want to unionize? 3 ii. Wages 3 iii. Representation on issues faced by workers 33 iv. Desire to retain independence and control over their own business 34 v. Who will represent sex workers? 35 vi. Unionization of sex workers 35 Certification 35 Union structure 37 Strikes and picketing 38 Section 4: Complaints and grievances 138 Section 5: Sex workers as independent contractors 143 Section 6: Sex workers operating as a collective 143 i. Formal collective arrangements 44 ii. Employment benfits and protection for sex workers recommendations 45 5 PIVOT LEGAL SOCIETY Part 4: Income Assistance and Employment InsUrance LAW 149 Income Assistance 149 i. Work search/employment related requirements 49 Two-year employment requirement 5 Declaring income 5 Three-week waiting period 54 Employment Insurance 154 i. Income Assistance recommendations 56 ii. Employment Insurance recommendations 57 Part 5: Income TAX LAW 158 Paying income tax and claiming income 158 i. Benefits of paying tax 60 The benefits of inclusion 60 The economic benefits 6 ii. Concerns about paying tax 64 Concerns about loss of privacy 64 Concerns about increased tax law enforcement by Revenue Canada 66 Concerns about retroactive taxation 66 Concerns about calculating income 68 iii. Tax deductions 7 Business expenses 7 Personal deductions 7 iv. Income tax law recommendations 73 Part 6: Company LAW 174 Business structures 174 i. Sole proprietorships 74 ii. Partnerships 75 iii. Corporations 76 iv. Cooperatives 77 v. Housing cooperatives 79 vi. Company law recommendations 80 Part 7: HUman RIGhts LAW 181 Human rights and discrimination 181 i. Human rights law generally 8 ii. Human rights protections for sex workers 8 iii. Discrimination based on source of income 83 Experiences of discrimination in housing 83 Experiences of discrimination in the provision of services 84 Discrimination based on sex: sexual harassment 186 i. Forms of sexual harassment encountered by sex workers 86 ii. Sexual harassment by employers 87 iii. Sexual harassment by clients 88 iv. Current protections against sexual harassment 89 v. Human rights law recommendations 90 Part 8: ImmiGration LAW 191 Are all migrant sex workers “trafficked persons?” 191 Migrant sex workers in Canada 192 i. Current working conditions of migrant sex workers 9 ii. Health concerns 97 The Immigration and Refugee Protection Act 197 i. Human smuggling and trafficking 98 Definitions of trafficking in persons 98 6 BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform Statistics 99 Trafficking procedure 00 Revenue generated from trafficking in persons 00 Challenges facing law enforcement 00 Jurisdictional issues 00 Detection difficult due to mobility 0 Difficulty obtaining witness testimony 0 ii. Changes to anti-smuggling and trafficking laws 0 Immigration and Refugee Protection Act 0 The Criminal Code of Canada and Bill C-49 03 Trafficking in persons 03 Profiting from trafficking 03 Withholding or destroying documents 03 Restitution 03 Protection of vulnerable witnesses 03 iii.
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