FOR WHOSE PROTECTION?

On the failures of Canada’s new sex work legislation

March 24, 2015

by Ella Bedard

“To whom can a girl go from the house of vice? Who will believe her? She is an utter stranger.”

Canada’s War on White Slave Traffic, Rev. J.G Shearer and Rev. T. Albert Moore, 1915.

“Prostitution dehumanizes and degrades individuals and reduces them to a commodity to be bought and sold.”

Conservative MP Joy Smith, 2014.

There’s a type of stock image that gets used a lot in newspaper coverage of sex work. It is a picture of a pair of womanly legs and a shapely butt wrapped in a tight black miniskirt. Invariably, there are high heels in the foreground and a car in the background. When arranged together—the butt, the car, the heels—we read: prostitute or, if you know better, sex worker.

Though the particular act of providing sexual services for money is not and never has been illegal in Canada, the hypothetical sex worker from the stock image is still breaking the law, just by the sheer fact of her standing there, in those heels, near that car. In 1915, she could have been charged with vagrancy; in 2015, she could be charged with communication for the purpose of solicitation. In the century between then and now, the laws and discourse around prostitution and sex have changed, but they have also remained the same in some striking ways.

In the eyes of nineteenth century lawmakers, sex work was seen as an immoral yet unavoidable public nuisance—a vice, as it is still classified by police departments around the world. Prostitutes were seen as public hazards to health and virtue and, simultaneously, as victims. For this reason, the primary aim of prostitution legislation was the containment and, to a lesser degree, dispersal of sex workers. For more than a century in Canada, it stayed that way.

In her ruling on the historic Supreme Court case Bedford v. Canada, Chief Justice Beverley McLachlin wrote that the three offending provisions of the Criminal Code that dealt directly with prostitution were in violation of section 7 of the Canadian Charter of Rights and Freedoms, and were an infringement on the rights of sex workers to security of the person. “They do not merely impose conditions on how prostitutes operate,” wrote McLachlin, “they go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaging in a risky—but legal—activity from taking steps to protect themselves from the risks.”

This case provided the opening for change. It could have signaled an end to an outmoded and ad hoc legal regime, and the violent impact of those old laws. But it didn’t work out that way.

In GUTS’ second issue, Work, Ainsley Doty wrote about the legal precipice created by the Bedford ruling. In Bedford, the judges ruled that the intent of the criminal laws dealing with prostitution—namely, to protect “communities” from sex workers—had a disproportionately harsh impact on the sex workers themselves. Writing before any legislation had been proposed, Doty talked about the before and the after created by the 2013 Bedford ruling.

No one was naïve enough to think that the political climate would change overnight, but there was hope. “This decision marks a huge step forward for sex workers’ rights and human rights in Canada,” wrote Pivot Legal Society on their website the day the Supreme Court handed down their ruling. Like many advocacy groups, Pivot has fought for sex worker rights for over a decade, and saw the decision as the culmination of years of organizing and struggle on behalf of the movement.

As part of the Bedford ruling, Canada’s highest court gave lawmakers one year to design a new legal framework that would give precedence to the well-being, health, and safety of sex workers. Bill C-36, The Protection of Communities and Exploited Persons Act is that new law. And by almost all accounts, it sucks.

Though C-36 uses the language of feminist intervention and humanitarianism, its effects may be the opposite. As Justice Minister Peter MacKay made clear in his initial post-Bedford statement, new laws would continue “to address the significant harms that flow from prostitution to communities.” In the formulation of that statement and in the name of the bill itself—The Protection of Communities and Exploited Persons Act—it is clear that the Conservatives’ idea of “community” still trumps the needs of sex workers, lessening any distinction between pre- and post- Bedford regimes.

Same, Same, But Worse

Along with Terri-Jean Bedford, former sex workers and lifelong activists Valerie Scott and Amy Lebovitch were also named as plaintiffs in the Bedford case. Together, these women are the co-coordinators of Sex Professionals of Canada (SPOC), an organization run entirely by sex workers.

Most of Canada’s major cities have sex-worker run organizations like SPOC. There is Maggie’s in Toronto, Peers in Victoria, Pace in Vancouver, Montreal has Stella’s—the list goes on. These organizations provide vital services for sex workers but they are in no way flush with cash. SPOC had initially set aside $40 towards a constitutional challenge of the criminal laws against prostitution—an endeavor that would ultimately cost thousands of dollars in legal fees. It was with the help of some better-endowed allies that Bedford, Scott, and Lebovitch brought forth their claims on behalf of the sex worker rights movement, which has been fighting these laws since the 1970s.

When I spoke to Valerie Scott on the phone, she told me that even on the day of their historic victory in Bedford, when the judges ruling vindicated more than six years of court battles, she and her co-applicants were only cautiously pleased with the result.

“Amy and I were worried,” she explained. “I remember walking to the television studios in Ottawa and saying ‘Ok, let’s not think about this today but they are going to do something.’ We didn’t expect it to be this bad. We didn’t expect it to be simply rewriting the laws in different language.”

As part of Bedford v. Canada, the Supreme Court overturned three provisions of the Criminal Code relating to prostitution:

• Section 210, prohibiting the operation of brothels or “common bawdy houses” (this essentially made it illegal for sex workers to operate an indoor business)
• Section 212, prohibiting any third party from living on the avails of prostitution (this limited sex workers from hiring body guards, managers, or other service providers)
• Section 213, prohibiting sex workers from communicating in public with clients (this pushed street-level sex workers into dark areas of town, where transactional negotiations were rushed or abandoned altogether)

All three of the laws struck down by Bedford have been on the books in one form or another since the late nineteenth century. As feminist legal scholar Constance Backhouse explains, nineteenth century legislators first inscribed prostitution into law as a response to demands for social purity. With the growth of modern industrial cities, prostitution came to be seen as both a moral evil, in which some women fell victim to the uncontrollable lust of men, and as social safety valve, which preserved the virtue of some women at the expense of others. Instead of addressing the social and economic conditions which drew many women to the sex trade, the intent of the law and other social policies were to hide the practice and eliminate the moral and health threats that prostitutes were said to spread. As a result, these laws had, from the outset, a disproportionate impact on the socially and economically marginalized—trans* and queer people, women of colour, immigrants, Indigenous women, and the poor.

With the Bedford ruling, the court agreed that the old laws would remain in effect for twelve months while government formulated new legislation. Despite an involved public consultation process, however, the new laws combined in Bill C-36 look a lot like these old ones.

In it, section 213, re-appears in a slightly milder formulation. The new 213 (section 1.1) prohibits communicating to offer sexual services in a public place near a school, playground, or daycare. This limits the unofficial red light district to high risk downtown and industrial areas. The old section 212, which criminalized various “third parties” from living off the avails of prostitution, was replaced with provisions 286.2 and 286.3, which are nominally meant to prosecute pimps and human traffickers from materially benefitting from the forced sexual labour of others. However, the language of the new provisions is so broad that they could also be used to prosecute sex workers who are working together, sex workers’ bodyguards, and even friends or family who are “receiving a material benefit” from a sex worker’s labour.

The Bill also includes a sweeping new provision, section 286.4, which makes it a crime to “knowingly advertise an offer to provide sexual services.” Many sex work review sites are taking flight from Canadian online servers; as a result of this law, it is now virtually impossible for sex workers to advertise their wares. Even though the seller cannot technically be prosecuted under this provision, all third party platforms—newspapers, websites, phone-services—are fair game.

The major addition to the Bill comes in the form of Section 286.1, which makes it illegal to purchase sexual services in any place, at any time. This is the first time in Canadian history that the actual transaction of sex work has been criminalized.

More Consensus than you’d think

This last type of policy, Section 286.1, replicates the key feature of the Nordic Model—an approach that aims to abolish prostitution by criminalizing “the demand side” of the sex industry. This provision is the most contentious on the roster of new laws because it cuts to the heart of the current debate about sex work, which is essentially the same debate that took place more than a century ago: Should sex work be allowed to exist? And alternatively, would it even be possible to abolish it?

The legal debate around this issue turns on the ideological question of whether sex work is a legitimate form of labour or an indefensible form of sexual exploitation. Those who favour the Nordic Model make little distinction between prostitution and human trafficking; not only is prostitution harmful to sex workers, the continued existence of the sex industry is seen as posing a major barrier to gender equality for society as a whole. Taking the view that all sex workers are victims, the Nordic Model criminalizes sex purchasers—the “johns” —with the goal of eventually abolishing prostitution.

On the other side of the spectrum are the sex-work-as-legitimate-labour advocates. Champions of this view favour decriminalization, arguing that sex workers are made more vulnerable when forced to work under the stigma of illegality. New Zealand, where sex work has been decriminalized since 2003, is usually presented as offering the most viable alternative to the Nordic Model. While human trafficking and forced sexual labour are both still punishable offenses there, consenting adult sex work is neither criminalized nor regulated. These legal reforms were created with input from sex workers, giving them access to rights under employment and public health laws, as well as recourse to justice in cases of violence, wage theft, and exploitation.

After Bill C-36 was tabled in June 2014, Members of Parliament’s Justice and Human Rights Committee heard from more than thirty lawyers, academics, charity representatives, church groups, front-line workers, as well as a few former and current sex workers, about the merit of these two models and how the legislation being proposed fared in comparison. More than twenty of the witnesses invited to speak agreed with either some or all of what the government was proposing, while about twelve of the witnesses —including all of those still working in the industry—did not.

Despite what might seem like clearly drawn battle lines, the two camps agreed on a lot. For one thing, almost all the witnesses spoke out against the reinstatement of the communication provision (Section 213), agreeing that no aspect of the new sex work legislation should criminalize the workers themselves. Furthermore, critics from across the board, including representatives from law enforcement, said that the $20 million that MacKay has earmarked to help women leave the industry was “peanuts,” and that it would take significantly more funding to actually create effective support systems for former and current sex workers. Furthermore, more than half of the witnesses who praised the Bill for criminalizing the purchase of sex also criticized it for stopping short of addressing the real systemic issues that fuel what’s called “survival sex work.” As so many of the witnesses attest to, most women enter the trade because they have no other viable economic options. The bill does nothing to address that.

Despite serious concerns presented by almost all the witnesses at both the House and Senate hearings on Bill C-36, the Bill sailed through both houses and remained virtually unchanged. As one witness, Christa Big Canoe, describes, “the process [of testifying at the hearings] was more draining than any kind of advocacy work that I’ve done, because I knew it was all falling on deaf ears.”

Why the Law Matters

Bill C-36 came into effect on December 6, Canada’s Day of Remembrance and Action for Violence Against Women. In several papers, Valerie Scott was quoted saying that the selection of this date was “sick and twisted,” given the amount of gender-based harm it will potentially do.

As I learned in the course of writing this article, sex work varies and different jobs come with different levels of risk. Indoor sex work is typically understood to be safer than street-level work, because it leaves more time for negotiation. When the first interaction happens over the phone or on the internet, (or in the context of a massage parlour or BDSM house) the seller has time to hash out the terms of service, such as condom use, what will and will not be performed, and at what cost. When that transaction is taking place on the street, negotiations can be rushed and workers have less time to gauge what type of person they are getting involved with.

When I asked Monica, an outreach worker at Maggie’s, about how, given all the risks of the work, sex workers stay safe, she assured me that most workers have safety systems in place and are by and large able to take care of themselves and each other. When I asked Valerie Scott the same question, she explained that when she worked alone, she always met her clients in public before committing to a job, making sure to get their real name and contact information.

For both indoor and street-level sex workers, the new prohibitions on the purchase of sex will undoubtedly heighten the dangers of the work. With the spectre of the police looming over every transaction, there is less time for risk assessment because nervous johns want to make negotiations quickly and in more secluded places. “Clients are just terrified right now because they are now afraid of being arrested,” said Scott. “They don’t want to identify themselves for fear that they think we are the cops. And if you book calls from blocked numbers you don’t know who you’re seeing. And that’s a gift to sexual predators.”

Bill C-36 comes with funding and expanded authority for law enforcement in policing sex workers. But for street-involved sex workers, of which trans* and Aboriginal people make up a disproportionately high number, life almost always gets harder when the police are around.

Christa Big Canoe is the Legal Advocacy Director at Aboriginal Legal Services of Toronto (ALST). Her organization testified during the Bedford case, and she also presented during the parliamentary hearings on C-36. She says that for the street-level sex workers who access her services, especially Aboriginal sex workers, the new laws will in no way reduce the harms associated with their work.

The problem that still needs to be addressed is the policing of sex work, “because as long as the police presence is there, people fear it and it drives the transaction into a back corner.”

In this way, the current legal regime is particularly problematic for Aboriginal people, especially Aboriginal women, who have a staggeringly high incarceration rate. Three out of every five federally sentenced women are Aboriginal. As Big Canoe says, that this has more to do with a buildup of minor infractions than major crimes. “Things that seem like minor charges for Aboriginal women make them the highest representational group in federal custody,”

If you look at Aboriginal women who are in federal custody, very often they have a former record of solicitation and that’s not the one thing that puts them there, but it demonstrates this trajectory of over-incarceration. She will get charged with solicitation under the former 213 and that’s not really what’s going to cause her serious jail time, but if she’s a survival sex worker she’s going to keep doing what she has to do to put food on the table. She’ll rack up charges and then she will be in breach of the original charge. It’s this administrative breach that actually results in stricter penalties. That’s how she accumulates a record.

Even if Bill C-36 did fully decriminalize all aspects of sex work (which it doesn’t), sex workers are often arrested for other misdemeanors and are interrogated for drug-related crime. As police start to enforce the new laws, even if they are only looking to prosecute johns, sex workers will come face to face with the cops a lot more often.

Jean McDonald is the coordinator of Maggie’s, a Toronto-based organization run entirely by and for sex workers. She says that the Toronto Anti-Violence Intervention Strategy (TAVIS), which is the cops’ current “community mobilization strategy,” has been nothing but trouble for sex workers and street-involved people. The initiative brings an influx of street cops into neighbourhoods that are considered to have higher than normal levels of crime—namely, poor and racialized communities. “Those initiatives led to crackdowns,” McDonald explained, “and the thing is, when you’re street-involved, it’s not just prostitution laws that are used against you, it’s also solicitation or loitering. People get ticketed or are just shuffled around or intimidated by police for those reasons.”

The other worry, McDonald explains, is that if more johns are scared off, sex workers have to work longer hours and take less appealing dates to make ends meet. McDonald suggests that if the goal is to end the sex industry altogether, why not address the systemic issues that draw women in to survival sex work?

If you really want to address gender inequality and some of the reasons why people enter into sex work who might not otherwise have made this choice, then have free daycare, free post-secondary education, increase welfare and disability rates, have more affordable housing. These are the things that people need and if you really want to reduce the feeling of some workers who might prefer to be doing something else, you want to increase opportunities for people, not take them away.

Big Canoe agrees that the lack of social support on a wider scale is what makes MacKay’s “Made-in-Canada” approach to the Nordic Model completely ineffective: “From an Indigenous perspective, the biggest problem is that the Nordic Model doesn’t house in Canada well […]—they are not colonized in the same we are in North America.” As she points out, the law does nothing to address how “hyper-marginalized,” Aboriginal people are disproportionately represented in the sex industry, nor does it address the fact that thousands of Aboriginal women have been murdered or gone missing in Canada. More than that, she continues, “in Sweden they have full social services, what they call Cradle-to-Grave type of services, where education is paid for, where all healthcare is paid for, where there’s daycare. And we don’t have that in Canada.” Given these major differences, Big Canoe suggests that it makes more sense to make policy comparisons with a country like New Zealand: “that model has congruency here, in that they are also colonized and they don’t have the same social support systems that the Nordic countries have.”

Under MacKay’s legal regime, we are “saving” women from prostitution but not giving them any alternatives to turn to; we ask them to give up their means of survival, and then we say get a damn job.

But if you’re marginalized, if you have a criminal record, if you are living in this country without Canadian citizenship, if your upbringing leads you away from education or job training and toward street work, if you never finished high school, if you’ve never had a job on paper, if you have no social safety net, it’s going to be damn near impossible to wake up the day after C-36 and say “great, I’m so glad Canada’s brought in these new laws because now I can finally quit sex work and get away from my life of sin.” Given all the other legal barriers that marginalized people face, not to mention the lack of job training, dismal employment rates, and damn near criminal minimum wage laws in this country, the roads to that so-called salvation are muddy and poorly mapped out.

Wait and See

No one knows exactly how the new law will be enforced, or to what extent. Given the precedents set in the Bedford case, it seems like only a matter of time before C-36 faces another constitutional challenge. But, as Big Canoe warns, it could take between three and ten years to build up enough evidence for such a case.

In the meantime, sex workers and their advocates are talking with local governments and police to try to hash out terms for non-enforcement. Vancouver Police Department has already announced that they will be sticking by their 2013 Sex Work Enforcement Guidelines report, which holds the safety of sex workers as a priority over law enforcement. Pivot Legal Clinic and Downtown Eastside Sex Workers United Against Violence are helping to make sure that the police stick to their guns by distributing “Know Your Rights” cards that explain what police can and cannot do to sex workers. McDonald says that Maggie’s has encouraged the Toronto police to adopt similar guidelines.

In response to the pressure from sex workers and their advocates, Ontario Premier Kathleen Wynne has asked Attorney General Madeleine Meilleur to provide an opinion on the constitutionality of the new laws. Technically, the AG could direct police not to prosecute sex-work related prosecutions, if she deems the laws unconstitutional. Several municipalities outside of Ontario, including Montreal and Saskatoon, are also weighing the constitutionality of the Bill and considering non-enforcement.

While some cities and provinces are stepping up to help sex workers and question the constitutionality of the new laws, it could just be token gestures that amount to little or no action. The sex workers and advocates I spoke to are nervous about crackdowns and the lack of business. They also say that it is still too early to say how the laws will be enforced and how big their impact will be.

“The issues are so different for some sex workers out there,” Monica at Maggie’s explains, “So some women, like trans women, that are still dealing with human rights issues, they need sex work to survive or to transition. You know what I mean? I haven’t heard from women about any enforcement of the laws, but it still has heightened women’s fear. It’s really changed the climate in which women are working now.”

This is life after Bedford, but it sure isn’t what was fought for.

ABOUT

Ella Bedard is an editor of GUTS, and a labour reporter at rabble.ca.