On November 4, the Senate approved Bill C-36 with no amendments on its third reading. By the end of the year, the Protection of Communities and Exploited Persons Act (PCEPA) will inevitably receive royal assent (if it hasn’t already by the time of this article’s publication), squeaking in before the deadline set by the Supreme Court after it struck down Canada’s previous prostitution laws last year. In their ruling, the Supreme Court specified that while Parliament is free to “[impose] limits on where and how prostitution may be conducted,” they must ensure that the new legislation does not inflict risks on sex workers. Somewhere along the line, this message must have been lost because, rather than take the advice of the Supreme Court and create provisions that protect sex workers, Parliament’s new bill will almost certainly make sex work more dangerous.
The Supreme Court’s 9-0 decision states, “…it is not a crime to sell sex in Canada.” And indeed, the sale and purchase of sex in Canada wasn’t; however, the Criminal Code included provisions (such as the inability to have a consistent place of business, to be an employee or to employ staff as a sex worker, or to communicate about the sale of sex in public) that created risks for sex workers. Rather than go the route of decriminalization, Parliament has chosen to follow the “Nordic model” implemented in Sweden in 1999, criminalizing the act of purchasing sex, essentially making one side of a once legal transaction illegal. While the sale of sex services is not itself criminalized, it is obvious (to everyone except the powers that be) that there cannot be a sale without a purchase.
While the Conservatives purport that they aim to reduce demand for sex services (which they equate to exploitation, but more on that later), what they’ve actually done is made working in the industry less safe. There is no evidence to suggest that demand for sex services in Sweden has dropped since its new laws were implemented. Furthermore, violence against sex workers has grown while reports of violence have declined. The PCEPA’s provisions will provide incentives for purchasers of sex services to remain anonymous, limiting the ability of sex workers to deter violence by screening clients or collecting personal information. Purchasers will also likely be less willing to perform an exchange in a safe location where the worker will be visible to others. By making the purchase of sex illegal, the PCEPA will push sex work back into the shadows, creating dangerous work conditions and a significant risk of harm. Beyond this, purchasers will be less inclined to report a sex worker who appears to be underage or a potential trafficking victim for fear of prosecution.
The PCEPA makes it a crime for any third party to earn money that is “derived directly or indirectly” from the sale of sexual services, unless it is a sale of a good or product that is sold to a sex worker on the same terms as the general public, or is a private service provided to a sex worker that doesn’t “counsel or encourage” sex work. It will be next-to-impossible for sex workers to come together to form a brothel that includes any form of management or security as anyone running or employed by a brothel could be charged. Sex workers will likely be forced to work individually, removing any form of safety net formed by working in a group. The PCEPA does allow sex workers to work at home, and allows those who have a “legitimate living arrangement” with a sex worker to receive material benefit from sex work. But what about sex workers who do not have a home? Without anywhere to go, they will be reduced to working in areas completely outside of the public view where they will be provided little to no protection.
The PCEPA also precludes any form of advertisement that “offer[s] to provide sexual services for consideration” by anyone except sex worker themselves, and even then, platforms that run ads could face prosecution. This extends to any form of publication, including the internet. Sex workers will be limited to using methods such as street solicitation, further diminishing their ability to collect information about their client and increasing their chance of harm.
In enacting the PCEPA, Parliament has made the fatal mistake of equating sex workers with exploited victims, and sex work with trafficking. Justice Minister Peter McKay said, “Bill C-36 reflects a fundamental paradigm shift towards the treatment of prostitution as a form of sexual exploitation,” a shift that is profoundly flawed if they wish to keep sex workers safe. By turning all sex workers into victims, the PCEPA makes what could be a legitimate, regulated industry into something that will continue to be stigmatized, socially isolated, and inherently dangerous.
A recent study conducted by the Canadian Institutes of Health Research found that seventy percent of sex workers are satisfied with their jobs and that they do not perceive themselves as the victims that Parliament understands them to be. This isn’t to say that trafficking for sexual exploitation isn’t a problem in Canada – it absolutely is. But, conflating sexual exploitation and sex work does nothing except lessen protection for sex workers who choose to work in the industry. If Parliament wishes to bolster laws against human trafficking, they should work to strengthen Canada’s existing laws, not confuse the issue with voluntary sex work. All the PCEPA will do is increase the risk of harm to sex workers, send otherwise law-abiding citizens to jail for purchasing a service from a voluntary provider, and waste taxpayer dollars when the PCEPA is inevitably challenged and (hopefully) struck down.