Are the current laws unconstitutional?
Back in 2013, my Law and Morality professor had a sex worker speak to the class about the issues that she and her colleagues faced due to the sex worker laws that were in place at that time. Those next few weeks, our tutorials were discussions about the morality of being a sex worker, and a classmate asked something along the lines of, “Laborers sell their bodies for money. What is wrong with doing sex work?”
Around that time, the Supreme Court of Canada ruled that sex work offences found in the Criminal Code violated the Charter of Rights and Freedoms in Bedford v Canada. In turn, the laws which criminalized selling sexual services, like the laws prohibiting brothels, living on the avails of prostitution, and communicating in public with clients, were struck down as they breached their Charter rights to liberty and security. The court gave Parliament one year to come up with new legislation if they so desired. In 2014, Bill C-36, the Protection of Communications and Exploited Persons Act (PCEPA), came into effect, which stated that prostitution was a form of sexual exploitation, and its objectives were meant to protect those who sell their sexual services. It criminalized the purchase of sexual services for money or communicating in any place for that purpose. While those who purchased sexual services faced consequences, those who sold sexual services did not. This was intended to keep women safe, but did it really?
In 2021, the Canadian Alliance for Sex Work Law Reform, as well as a few women in or previously in the sex work industry, initiated a proceeding at the Ontario Superior Court of Justice against the Attorney General of Canada, arguing that the Criminal Code breached their sections 7, 15(1), 2(b), and 2(d) Charter rights. In their factum, they state that the PCEPA actually harms sex workers, and that there is no evidence that sex work is inherently exploitative. Arguably, the evidence from the Bedford case stating that sex work is exploitative came from prohibitionist advocates who made statements that were not actually reflected in research.
The coalition of sex workers argue that PCEPA causes significant harm to sex workers. Not only does it further stigmatize sex workers, but it also makes it more difficult for them to protect themselves while making a living. They argue that the current laws force sex workers into isolation, expose the risk of eviction and make it difficult to access safe indoor workplaces, and prevent them from communicating to clients about their health, safety, or ability to consent (or refuse) sex. These laws not only criminalize the purchase of sexual services and communication of selling sexual services in the public, but also act as barriers for governmental support and contribute to the stigma of sex work. It forces sex workers to hide what they do and makes it riskier for them – without being able to communicate their sexual services in a public way, it makes it more difficult for them to negotiate the consensual sexual activity, like condom use. Tara Santini, who is the co-counsel for the applicants, argued on Monday that individuals have a right to autonomy, which affects sex workers’ section 7 rights. She argued that morality is “irrelevant to the question of whether section 7 is being violated.”
This is not the first time that sex workers have voiced their concern over the way the law views sex workers. Some sex workers were frustrated when Backpage shut down in 2018 after being seized by U.S. authorities following allegations that it facilitated prostitution and human trafficking. Many sex workers relied on Backpage as a source of finding potential clients, and in a quick sweep their source of income was taken away. It forced sex workers to find another safe online platform to sell their services. It removed the worker’s ability to screen their clients, which they were able to do so by advertising online. In response to that, some sex workers had to “walk the streets” to obtain business. Jelena Vermilion, an Ontario sex worker, responded to this by stating, “[Sex workers] don’t have a lot of agencies, because our work is not decriminalized, we don’t have the ability to unionize and as far as our ability to demand…to do better, no, we don’t have any negotiation power there.” Is it time to finally make a change, and decriminalize sex work?
The current prostitution laws are not offering the protection that Parliament intended to create for sex workers. The hearing began on 3 October 2022, and we will find out if Parliament steps up to the plate to make the much-needed changes to these laws.