It has been just over one year since the Bedford decision and sex workers have yet to see any significant benefits from the ruling. The landmark decision, delivered in December 2013, effectively struck down three Criminal Code provisions deemed to exacerbate the risk of harm faced by sex workers — an ostensible victory for sex worker rights.
However, the days of decriminalized sex work have been short-lived. With the Conservative government’s swift response to the decision, Bill C-36, also known as the Protection of Communities and Exploited Persons Act (PCEPA), passed through our parliamentary system without meaningful consultation.
Having had a year to reflect on the changing prostitution laws in Canada, it comes as no surprise to have come full circle, legislating from a moral position that sex work is inherently exploitative — a fundamental ethos that ignores many diverse experiences of those within the sex trade.
As we kick off the New Year, prostitution is criminalized yet again. Despite the Supreme Court’s recognition that sex workers’ lives are put at risk through vaguely defined laws, the government’s response reflects many of the same legislative and constitutional problems it faced in the pre-Bedford regime.
Justice Minister Peter MacKay has acknowledged that the provisions that constitute Bill C-36 will be subject to judicial interpretation, begging the question: why didn’t the Conservative government reference the Supreme Court before passing Bill C-36?
Throughout the summer of 2014, committees from the House of Commons and Senate heard testimony from some of Canada’s most distinguished legal and sociological experts, many of whom questioned the constitutionality of Bill C-36, claiming it would likely fall again to a Charter challenge in the coming years.
Despite the inherent ambiguities within the legislation, the Conservative Party refused to reference the constitutional muster of Bill C-36 to the Supreme Court of Canada. This is not because the Conservatives are particularly confident that the courts will uphold the legislation, since MacKay acknowledges the need for further judicial interpretations.
Rather, it is because the Conservative Party has vindicated its politics through a moral high ground, claiming sex work is inherently wrong — a position that rejects the legitimacy of any form of sexual labour.
Not surprisingly, the evidence overwhelmingly suggests that sex workers will continue to be vulnerable to violence and exploitation — a reality that contravenes the objectives of the Bedford decision. By targeting clients more vigilantly, sex workers will be forced to conduct transactions in the seedy underbellies of urban and rural regions, in order to ensure client anonymity.
Thus, experiences of violence and victimization will continue to go unreported in an effort to minimize their interactions with the criminal justice system.
Looking back, the decision to streamline Bill C-36 into law not only serves as a tactic that ensures the continued criminalization of sex workers, it also reinforces the moral authority of the government to decide which citizens are worthy of protection, while criminalizing those it finds morally suspect.
Accomplishing this, however, requires a certain emotional tactic that distorts relevant sociological research. The narratives of human trafficking, for example, have had a resounding impact on public perceptions of prostitution. However, laws protecting women from forcible confinement and human trafficking already exist within the Criminal Code. These narratives, which invoke a certain emotional response, constructs all sex workers as victims ensures that law enforcement will not be restricted from preventing, investigating or prosecuting those that engage in acts of human trafficking.
Bill C-36 will, however, give police more discretionary powers to stop, question and arrest women suspected of selling sexual services.
As York Regional Police Chief Eric Joliffe testified, “Once Bill C-36 is implemented, it is our hope that this legislation and related funding will continue to provide law enforcement with the tools of intervention to extract victims from immediate dangers and connect them to victim services and support agencies.”
These tools of enforcement are merely euphemistic of an ongoing project to interrogate, harass and arrest sex workers as part of a moral crusade to rid Canada of prostitution.
In response to the growing concern over the future of enforcement, Ontario Premier Kathleen Wynne has ‘grave concern’ of the government’s swift action to reintroduce legislation that criminalizes sex workers and their clients. Despite this, Ontario will enforce the new legislation.
In a statement to the Canadian Press, Wynne specified, “The position we’re taking is that we’ll follow the rule of law, the law that’s in place, but I have asked the attorney general to look at the potential of unconstitutionality and to give us some options in terms of what we might do going forward.”
It may be years until we see another challenge brought before the Supreme Court regarding the constitutionality of Bill C-36. This year will bring further talks about sex worker safety among advocacy groups as the federal election approaches.
Whether the constitutionality of Bill C-36 holds up, its mandate has leveraged a position that seemingly situates the Conservatives as the moral crusaders against exploitation — a narrative that will be touted during federal election campaigns.
The sex trade is not as black and white as the government suggests. In fact, sex workers experiences are constructed through various social positions shaped by gender, sexuality, race, age and ability — experiences of the sex trade are not uniform and homogenous.
We must remember that the criminal justice system is not an institution designed to help people; it is an institution used to punish. With sex workers lives at stake, debates over the morality of sex work should be remanded to discussions of the Victorian era, not discussions of our contemporary Criminal Code.
Marcus A. Sibley is an M.A. Candidate in the Department of Law and Legal Studies at Carleton University. He is currently researching the intersections of representation, identity and risk in Canadian sex work regulation. Follow him on twitter: @marcussibley
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