Beruflich Dokumente
Kultur Dokumente
OVERVIEW
1. Pivot Legal Society (“Pivot”) is a human rights organization in Vancouver that works on
behalf of marginalized communities to create a just, fair, and equitable society through
litigation, law reform, research, and legal education. We work in partnership with
marginalized people and grassroots movements to challenge legislation, policies, and
practices that undermine human rights, intensify poverty, and perpetuate stigma.
2. Pivot works with communities of sex workers in Vancouver to advance their rights,
improve their safety and reduce stigma against them. Pivot advocates for the repeal of
criminal laws that prohibit the purchase and sale of sexual services by adults and the
involvement of third parties in sex work. This position is supported by a comprehensive
examination of domestic and international evidence, by a robust human rights analysis, and
by the experiences and evidence of sex workers from across Canada and around the world
who have endured the harms caused by the criminalization of sex workers, clients, and third
parties.
3. Our submission focuses on the Justice Committee’s mandate to examine “the current legal
framework, its effectiveness and challenges, the challenges the justice system faces in
prosecuting traffickers, and possible changes to the legal framework to more effectively
combat human trafficking.” We urge this Committee to take steps to develop a nuanced,
evidence-based, effective strategy that takes into account both the human rights and dignity
of sex workers and the need to protect vulnerable groups from trafficking. Creating an
environment where sex workers could enjoy respectful and trusting relationships with law
enforcement would facilitate genuine trafficking cases being identified and prosecuted.
2
into account the differences between consensual, adult sex work and human trafficking
ensures an evidence-based policy, and addresses the respective needs of vulnerable groups
in our society, particularly for Indigenous and migrant individuals.
Defining Terms
6. Adult consensual sex work (“Sex Work”) is the exchange of sexual services for money or
other consideration between adults, and with consent.
1
We commend to the Committee Pivot’s Report titled The Case for Repeal, which outlines the harmful and
arguably unconstitutional effects of the revised Criminal Code provisions passed in 2014 that regulate sex
work, which is attached as an appendix to this submission. This Report details our concerns about creating
an inaccurate legal equivalence in the law between trafficking and adult consensual sex work, in the context
of the Criminal Code. In particular, we comment that the Committee review pages 65 – 74, which are relevant
to the task before this Committee.
3
2
The full name is the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children, and the full text is available here:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx. The Protocol
supplements the United Nations Convention Against Transnational Organized Crime.
4
seen in public discourse, some people consider all consensual, adult Sex Work to be a form
of exploitation, and incorrectly assume that all transactions involving sex involve forced or
non-consensual sexual acts. This ignores the reality that the vast majority of people who sell
sex in Canada do not experience coercion or force and choose Sex Work as an effective
means of earning an income. They are not “trafficked,” by their own accounts and according
to the definitions provided under international or Canadian law.
11. The misrepresentation of consensual adult Sex Work as Human Trafficking endangers sex
workers, particularly those who are im/migrants to Canada, by subjecting them to
intensified scrutiny from law enforcement and immigration officials. In addition, misplaced
enforcement efforts result in sex workers’ diminished access to meaningful labour
protections. It also impairs the detection of and effective response to Human Trafficking
because individuals engaged in Sex Work that may have the opportunity to detect Human
Trafficking in the industry are dissuaded from engaging the attention and assistance of law
enforcement because they are engaged in criminalized work.
12. Currently, Canada’s legislative definitions for Human Trafficking do not accord with
international standards, and instead conflate the concepts of Human Trafficking and Sex
Work in certain cases. For example, s.286.2(1) which was introduced under The Protection of
Communities and Exploited Persons Act (PCEPA) states, in relation to Sex Work, that
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. Section 279.02(1), in relation to Human Trafficking, duplicates this language in
its entirety and was introduced under PCEPA. This indicates that legislators at that time had
conflated the two concepts.
13. Disentangling the concepts of Sex Work and Human Trafficking is consistent with
international recommendations aimed at the eradication of sexual abuse and sexual
exploitation. Effective measures to address the needs and rights of people affected by each
5
must be advanced.3
B. CONFLATING SEX WORK AND HUMAN TRAFFICKING IS HARMFUL
AND COUNTERPRODUCTIVE
14. Both Sex Work and Human Trafficking are legitimate considerations for policy makers.
However, treating them as equivalent in making or interpreting policy gives rise to a range
of harms, resulting in ineffective public policy in relation to each.
3
GAATW, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights Around the World
(Bangkok: Global Alliance Against Trafficking in Women, 2007),
http://www.gaatw.org/Collateral%20Damage_Final/singlefile_CollateralDamagefinal.pdf.
4
“18 massage parlours raided, 100 arrested,” Vancouver Sun, 9 December 2006, cited in A Clancey, N
Khushrushahi & J Ham, “Do Evidence-based Approaches Alienate Canadian Anti-Trafficking Funders?” Anti-
Trafficking Review, Issue 3, 2014, p. 87-108.
6
victims. In an April 2015 sting in Ottawa, 11 people were arrested, held without contact,
and ultimately deported, without having received any assistance from community
organizations.5 Because undercover police have deceived sex workers by setting up fake
dates and gain access to their workplaces, which are often their homes, Operation
Northern Spotlight (which is ongoing) continues to generate fear and mistrust. This type
of aggressive law enforcement is not only counterproductive, it increases the risk faced by
sex workers.
18. Anti-trafficking enforcement also makes it more difficult for sex workers to report
problematic employment environments. Because they do not have the benefit of
employment protections afforded to other workers in Canada, sex workers may be
concerned that their report may trigger a police response rather than employment
protections. A common employment issue such as long shifts at massage parlours or
payroll errors may be falsely categorized as exploitation and Human Trafficking. This
mischaracterization can result in unwarranted and intrusive investigation by police or
immigration officials. In addition, the loss of privacy over one’s identity as a sex worker can
dissuade im/migrant sex workers from accessing vital services such as health care and
makes them hesitant to seek protection under the justice system when they are victims of
crimes, including theft, which occurs commonly. The criminalization of the purchase of
6
sexual services also dissuades the clients of sex workers from reporting Human Trafficking
when it is encountered in the context of obtaining sexual services.
19. Abusive police conduct in so-called trafficking investigations is also a significant barrier to
reporting, as it erodes any trust between the police and victims of crime. More than 40% of
5
Carmelle Wolfson, “Eleven women face deportation following human trafficking investigation in Ottawa,”
Canada OH&S News, May 19, 2015, http://www.ohscanada.com/health-safety/eleven-women-face-
deportation-following-human-trafficking-investigation-in-ottawa/1003347142/ ; Catherine McIntyre, “Migrant
se workers caught up in Ottawa sting facing deportation, further exploitation: activists,” May 13, 2015,
http://news.nationalpost.com/news/canada/migrant-sex-workers-caught-up-in-ottawa-sting-facing-deportation-
further-exploitation-activists.
6
For additional information, we recommend reviewing the report of Millar, H., & O’Doherty, T. (2015). The
Palermo Protocol & Canada: The Evolution and Human Rights Impacts of Anti-Trafficking Laws in Canada,
Key Findings (2002-2015) p. 71-72. https://icclr.law.ubc.ca/publication/the-palermo-protocol-canada-the-
evolution-and-human-rights-impacts-of-anti-trafficking-laws-in-canada-2002-2015/
7
the women contacted by the Toronto-based organization Butterfly say that they have
experienced abuse at the hands of police. In Vancouver, Detective Constable Jim Fisher
recently plead guilty to two counts of breach of trust and one count of sexual exploitation
against minor victims of sexual exploitation and Human Trafficking. 7
20. The seizure of condoms as evidence is common, and in some cases, police have pulled up
sex workers’ dresses to see if they were wearing underwear.8 Not surprisingly, a survey
conducted by SWAN in Vancouver in 2013 found that 95% of the im/migrants they work
with would not contact law enforcement if they experienced a violent crime.9 There have
been three murders of im/migrant sex workers in Ontario since 2014, and all remain
unsolved.
b. Dangerous assumptions of guilt by association are reinforced.
21. Im/migrant sex workers, particularly those whose English or French language skills are
limited, depend on the assistance of others in very specific ways to make their work safe
and viable. They often rely on others, informally and in managerial positions, to help them
place ads and to find workspaces. Yet under the trafficking and procuring laws, they fear
implicating friends and coworkers, who could face serious charges merely for being an
associate.
22. For example, Pivot received a report from Butterfly regarding a woman who was detained
for two weeks by police as a “trafficked person”, despite her insistence that she was
working voluntarily. Although she was never criminally charged, her phone was seized as
evidence, and she was forbidden from making calls to anyone, including legal counsel. Police
seized $10,000 of her money as evidence and as part of their “ongoing investigation.” It has
not been returned. After a search of her hotel room, the police came across a photo of
her and a friend, and swiftly arrested her friend. Although the friend was eventually
released, she lost her housing in the process. During the process, the sex worker disclosed
7
Simon Little, “Decorated former VPD Detective Jim Fisher pleads guilty to sexual exploitation, breach of
trust” Global News. March 28, 2018. https://globalnews.ca/news/4111285/vpd-jim-fisher-guilty-plea/
8
Personal communication with Butterfly support person, June 6, 2016.
9
SWAN, Zi Teng & ACSA, Chinese Sex Workers in Toronto and Vancouver, 2015, p. 28,
http://swanvancouver.ca/wp-content/uploads/2015/05/Chinese-sex-workers-in-Toronto-amp-Vancouver-
Ziteng-SWAN-amp-ACSA.pdf.
8
to police that she had recently been sexually assaulted and robbed. No investigation was
undertaken into the crimes committed against her.10
23. There is no credible public policy goal advanced with this type of treatment, which is
founded in assumptions of guilt or complicity instead of evidence and relies upon the
detention and coercion of women engaged in Sex Work. If the goal of policy makers is to
reduce harm, strategies that exacerbate harm, using measures that push vulnerable
people into more and more covert situations, is contrary to the laudable purpose of any
such measures. In fact, it has the effect of increasing the barriers that sex workers face
when trying to access police protection. In some cases, sex workers feel that in order to
report assaults or robberies to the police and have their cases taken seriously, they must
misrepresent themselves as victims of Human Trafficking when that does not reflect their
experience and is not the offence they wish to report to police.
c. Conviction in bona fide cases of coercion is made more difficult.
24. Researchers and criminal justice system personnel have suggested that the anti-trafficking
narrative has created false expectations among prosecutors and courts about what
exploitation looks like and has contributed to a lack of conceptual clarity about the
elements of offences. When judges and prosecutors are conditioned to associate Human
11
Trafficking and exploitation with stories of young women forcibly confined and sexually
assaulted, it may be harder to get convictions for more frequent, but still serious, labour
abuses that involve elements of deception or coercion, but not necessarily egregious
violence or personal indignity.
25. As an example, im/migrant workers in a variety of industries who do not have work visas
are legitimately concerned that if they complain about work conditions, their immigration
status will be reported. Acts of blackmail like this, which are common, can amount to
Human Trafficking, but in most industries these scenarios are less salacious than those of
sex trafficking, and rarely gain media attention.
10
“Migrant Sex Workers Live Under Constant Police Threat,” (Part 5 of Series) Ricochet,
https://ricochet.media/en/1421/migrant-sex-workers-live-under-constant-police-threat
11
Millar and O’Doherty, p 61-62
9
26. Heavy dependence at trial on testimony by victims about their perceived fear that their
safety or the safety of a person known to them would be threatened also makes it harder to
meet the criminal burden of proof beyond a reasonable doubt, particularly when
complainants’ may be reluctant to testify, or their credibility is questioned.12
27. The result is a worst-case scenario, where police use intrusive tactics to enforce an
overbroad concept of exploitation, and the court system is unable to properly address the
issues that may be present in the case and amounting to real disadvantage to a sex worker,
such as working hours, access to finances, and appropriate vacation time.
d. The lived experiences of racialized women engaged in Sex Work are
misconstrued and stereotyped.
28. Anti-trafficking campaigns contribute to and rely on racial profiling and are often used as a
pretext for investigating indoor establishments employing racialized women, particularly
Asian women with non-Western accents and Indigenous women. In indoor Sex Work
settings, racialized women may be present, but the presumption that they are “trafficked” is
inaccurate, when many are working consensually, and have Canadian citizenship or
permanent resident status or have otherwise migrated legally. Indigenous women are over-
represented in street-level Sex Work but it wasn’t until the mid-2000’s when a community
of advocates began to characterize the experiences of Indigenous people selling or trading
sex as Human Trafficking, irrespective of whether consent was present or not. Further, this
framework has been increasingly used to describe the phenomenon of missing and
murdered Indigenous women and girls. 13
29. Legal im/migrants face jeopardy in such investigations. Given that restrictions on work visas
prohibit women coming to Canada from engaging in work considered sexually exploitative,14
12
Millar and O’Doherty, p. 63-64; Julie Kaye 1, and Bethany Hastie, The Canadian Criminal Code Offence of
Trafficking in Persons: Challenges from the Field and within the Law Social Inclusion (2015, Volume 3, Issue
1) Pages 88-102
http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1527563432332~474
13
Hunt, S. (2016). Representing colonial violence: trafficking, sex work, and the violence of law. Atlantis:
Critical Studies in Gender, Culture & Social Justice, 37(2), 25-39.
14
Section 30(1.4) of the Immigration and Refugee Protection Act empowers the 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 treatment, including sexual exploitation.”
10
including escort work and exotic dancing, disclosure of Sex Work may jeopardize the legal
immigration status of someone holding a temporary work visa or student visa.
30. Canadian Border Services Agency, which has broader powers of entry than municipal police,
often accompanies other police or local by-law officers to raid indoor establishments, under
the guise of “rescuing” the “foreign” women working there. When this does not result in
deportations or immigration charges for the sex workers employed there, it serves to drive
clients away, meaning that those who are paid per-client rather than per-hour have to work
longer to make a living, and it leaves sex workers with pervasive anxiety about their work.
Incorrectly assuming that all migrant sex workers are victims of Human Trafficking is a form
of racism that denies the agency of adult sex workers and contributes to their ongoing
economic and social disadvantage.
31. According to organizations whose mandate it is to provide services and support to
im/migrant women doing Sex Work, including SWAN in Vancouver and Butterfly and the
Migrant Sex Workers Project at Maggie’s in Toronto, the descriptions of exploitation and of
trafficked persons propagated by the anti-trafficking movement do not match peoples' lived
experiences. SWAN, which has operated in Vancouver for more than a decade offering
services to im/migrant indoor sex workers, has only encountered two cases of Human
Trafficking in its 10+ years of operation. In focus groups conducted with SWAN members, a
participant described im/migrant sex workers as contrary to the stereotype trafficking
victims:
“I think the women are the opposite of who the trafficking victim is represented to be
and who migrant and immigrant sex workers are represented to be, i.e. passive,
subservient, uneducated, backwards, unable to speak for themselves [....]. They’re
actually the opposite of that. They’re go getters. Despite all the barriers that they have
in the Canadian labor market, they still find a way to provide for their families.”15
32. Given this information that contradicts the acquired wisdom about Human Trafficking, we
submit that it is vital to base sound public policy in a more nuanced framework, one that
15
Im/migrant sex workers, myths and misconceptions: Realities of the Anti-Trafficked. SWAN Vancouver, Written
by Kimberly Mackenzie and Alison Clancey. Vancouver (2015) at p. 12. http://swanvancouver.ca/wp-
content/uploads/2014/01/Realities-of-the-Anti-Trafficked.pdf.
11
recognizes a greater diversity of both experiences and needs. Doing so will contribute to
being better able to address the vulnerabilities and needs of all.
C. SEX WORK SHOULD BE DECRIMINALIZED BOTH TO EFFECTIVELY
RESPOND TO HUMAN TRAFFICKING AND TO PROMOTE THE HUMAN
RIGHTS OF SEX WORKERS
33. For the reasons set out in our report, The Case for Repeal, the Criminal Code should be
amended to dismantle the harmful amendments brought about in 2014, which further
criminalized Sex Work, and enhanced the harms and stigma faced by sex workers. Doing so
would not undermine the ability of the Criminal Code to respond to Human Trafficking,
coercion, abuse, assault and other harmful mistreatment of trafficked persons and sex
workers, as well as the general public.
34. When Sex Work occurs above-ground, without the cloak of criminalization, it becomes
easier to detect Human Trafficking. Providing sex workers with strong occupational health
and safety protections and access to police is the most effective way to ensure that
incidents of exploitation, violence or Human Trafficking are brought forward to the
authorities. Increased legal rights enable sex workers to access police protection and
bring legal action against third parties who attempt to extort or coerce them. These
protections should be offered to everyone engaged in Sex Work.
35. Repealing PCEPA and decriminalizing adult Sex Work will mean:
a. Sex workers can work together and with third parties without fearing arrest.
Providing ways to work with others legally is essential to sex workers' health
and safety. Being able to build relationships with other sex workers and
trusted third parties in the industry is essential to combatting a dangerous
illicit market for sexual services.
b. Some sex workers choose to work in managed work-places as they do not
have the resources to pay for a work-place on their own. Third parties
provide other important services to sex workers such as answering phones,
housekeeping, security, and transportation. Current laws prohibiting receiving
a material benefit from the sexual services of another person are confusing and
create an environment where sex workers are more vulnerable to exploitation
12
and Human Trafficking. For example, S.286.2(1) presumes anyone who lives
with or is habitually in the company of a person who offers or provides sexual
services is guilty of an indictable offence unless they fall within 4 listed
exceptions, but goes on to list 5 circumstances where these exceptions would
not apply. Further, there is no exception when the material benefit was
received in the context of a commercial enterprise that offers sexual services
for consideration, but it is unclear to sex workers what constitutes a
commercial enterprise for the purposes of the Criminal Code.
c. Sex workers can work indoors safely if the laws are repealed. Providing safe
and legal indoor venues for Sex Work is critical to providing sex workers with
control over their conditions of their work, and provides greater
opportunities for sex workers to avoid exploitive third parties on the street,
or in undesirable indoor venues.
d. The Supreme Court found in Canada (AG) v. Bedford, 2013 SCC 72, that when
sex workers did "in-calls", offering services at premises over which they had a
measure of control, they were more able to establish a regular clientele
roster, employ preventive health and safer sex measures, work together with
other staff, and use security protocols such as audio room monitoring. The
SCC concluded that prohibiting in-calls increased risk to sex workers. 16
Therefore, Canada’s laws should permit indoor Sex Work in order to ensure
that sex workers have access to safe work environments and can create a
network of sex workers that victims can rely on for help if they are exploited
or trafficked.
e. For example, in India, a sex worker run self-regulatory board called the
Durbar Mahila Samanwaya Committee in Sonagachi (Kolkata) India was
successful in identifying and supporting women who had been trafficked. 17
16
Canada (AG) v. Bedford, 2013 SCC 72, paras. 61-65
17
Jana S et al., "Combating human trafficking in the sex trade: can sex workers do it better?" Journal of Public
Health, 36(4), (2014): 622-628, http://www.ncbi.nlm.nih.gov/pubmed/24179187
13
When freed from the threat of law enforcement, sex workers can organize
and collaborate with law enforcement in a far more effective way. They are
essential to effective Human Trafficking investigations.
f. The ability to communicate freely is a critical safety measure for sex workers.
They must be able to negotiate the terms of each Sex Work transaction in
order to provide consent. These negotiations include determining the location
of work, the services agreed to, safer sex education, and cost. They also
provide the sex worker an opportunity to assess the clients' intentions to
ensure that they intend no harm. The SCC found in Bedford that criminalizing
communication and enforcement of these laws interfered with sex workers'
abilities to screen prospective clients.
36. Sweden's criminalization approach has made it harder to fight Human Trafficking. With
the criminalization of clients, police and sex workers report that it is more difficult to
respond to Human Trafficking. The Swedish National Police Board found no evidence that
Human Trafficking has diminished and found that the criminalization of clients has made it
more difficult to prosecute "traffickers and coercive pimps". Research in Sweden found
18
that the criminalization of clients has made sex workers more reliant on third parties to
find clients and thus more vulnerable to abusive or coercive third parties. 19
37. Decriminalization of adult consensual Sex Work, instead, would contribute to the social
citizenship of sex workers, enable them to safely report abuse and Human Trafficking when
it is detected by them, and reduce the overall danger faced by trafficked people and sex
workers - both groups who face vulnerability and danger under the current legal order.
18
Susanne Dodillet and Petra Östergren, The Swedish Sex Purchase Act: Claimed Success and Documented
Effects, Conference paper presented at the International Workshop: Decriminalizing Prostitution and
Beyond: Practical Experiences and Challenges. The Hague, March 3 and 4, 2011
http://www.nswp.org/sites/nswp.org/files/Impact%20of%20Swedish%20law.pdf
19
Norwegian Ministry of Justice and Police Affairs (2004). “Purchasing Sexual Services in Sweden and the
Netherlands”. http://www.nswp.org/sites/nswp.org/files/232216-
purchasing_sexual_services_in_sweden_and_the_nederlands.pdf
14
CONCLUSION
38. Both Human Trafficking and Sex Work require public policy attention. Trafficking provisions
in the Criminal Code and in the IRPA are of public value and have the potential to address the
inhumane and harmful conditions faced by trafficked people, and to deter Human Trafficking.
When bona fide Human Trafficking occurs, use of these provisions is entirely appropriate
when the situation reveals exploitation, coercion and abuse. These provisions are not
suitable as a catchall for enforcement in situations of consensual Sex Work. Understanding
and respecting the difference will assist in protection of the rights of all involved.
39. A public policy approach that more appropriately addresses the issues of concern before
this committee would involve:
a. providing funding for partnerships between sex workers and unbiased
researchers to research the nature and extent of Human Trafficking in Canada,
with a research framework that distinguishes between Human Trafficking and
adult, consensual Sex Work;
b. engaging in evidence-based policy design that takes account of the different
characteristics and realities of sex workers from various aspects of the sex
industry;
c. considering and giving considerable weight to information from sex workers,
who are best placed to recognize exploitation in their occupation, and
information from people who have been trafficked, who are best placed to
convey the ways in which they could most effectively seek assistance and the
barriers that policy can cause;
d. education for law enforcement to change attitudes about how laws and policies
are enforced or carried out, so that anti-trafficking measures are deployed to
stop and prevent actual coercion, and not to terrorize people who are engaged
in Sex Work consensually;
e. policies guaranteeing im/migrants access to health care, community services and
police services without fear of deportation or immigration charges;
f. providing sex workers greater access to safety, security, the protection of the
law, including protection against Human Trafficking, and the benefit of labour
15
protections and access to human rights protections under provincial and federal
laws by repealing the following sections of the Criminal Code that relate to adult
Sex Work:
a) Section 213: Stopping or impeding traffic & communicating to provide
sexual services for consideration
b) Section 286.1 (1): Obtaining sexual services for consideration
c) Sections 286.2 (1), (3), (4), (5), (6): Material benefit from sexual services
d) Section 286.3 (1): Procuring
e) Sections 286.4 and 286.5 (1), (2): Advertising sexual services
____________
Frances Mahon,
Kerry Porth, and
Elin Sigurdson
ON BEHALF OF PIVOT LEGAL SOCIETY
16
APPENDIX
Evaluating Canada’s Sex Work Laws: The Case for Repeal
EVALUATING CANADA’S SEX WORK LAWS:
Let’s
open
the
discussion
CONTRIBUTORS
Authors
Brenda Belak
Darcie Bennett
Reviewers
Amy Lebovitch
Kerry Porth
Alison Clancey
Katrina Pacey
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.
Every legal problem is unique. The legal analysis in this report is general and provided
for informational purposes only. If you are facing a legal problem, please speak to a lawyer.
Appendix 1: Key Provisions from the Charter of Rights and Freedoms .... 80
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.
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
v. Bedford, Lebovitch, and Scott.1 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
issue in Bedford 2 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].
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.
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.
less than 20% of Canada’s complex and 29 Known as the Canadian Organization for the
Rights of Prostitutes at the time.
Work Enforcement set out that VPD officers will use their
discretion to focus on enforcing the laws
“
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
Amnesty International
has yet to be government review
undertaken five years after
suggested that the achievedin 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
criminalization.
”
the emergence of a 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
vulnerability for sex workers.”60 This they were previously. 62
trend was predicted by the authors
of the 2008 Fafo baseline study,
who anticipated that risk-reduction
strategies would become more difficult
60 The Human Cost of Crushing the Market, 66. 62 Prostitution law reform in New Zealand, 5
25%
sex workers in Canada experiences of people
who do not identify 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
Experiences among Men, Two Spirit,
or gender non-binary or non-conforming,
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.
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,
the test of incompatibility with the proper
to demonstrably anti-social behaviour, or
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.”
(a) an indictable offence and liable to imprisonment for a term of not more
than five years and a minimum punishment of,
(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.
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
125 Vancouver Sun (Re), 2004 SCC 43, para. 26. 127 Prostitution Reference, 1136.
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;
(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.
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.
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.
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.
Conclusion
of Trafficking
International
and Sex Work Recommendations
on Enforcement
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
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.
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.
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.
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.
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.
http://www.nswp.org/timeline/event/red-umbrella-first-
used-venice-italy-symbol-sex-worker-solidarity