The Ontario Superior Court of Justice building in Toronto.
The Ontario Superior Court of Justice building in Toronto. Credit: Ken Lund / Wikimedia Commons Credit: Ken Lund / Wikimedia Commons

Last month, the Ontario Superior Court of Justice finally released its decision regarding the constitutional challenge put forth by the Canadian Alliance for Sex Work Law Reform (The Alliance), who argued that the current laws surrounding sex work, namely the Protection of Communities and Exploited Persons Act (PCEPA), are unconstitutional. The Alliance argued and advocated for the full decriminalization of sex work in Canada. Unfortunately, the court upheld the current laws.

This decision has “devastated a lot of sex workers in the community. They feel dismissed by the language used in the judgement, and also its reasonings…[which] re-enforces a lot of the stigma against sex workers and a lot of the stereotypes about sex workers,” said Jenn Clamen, National Coordinator and spokesperson for The Alliance, over a phone interview with me.

I’ve written about this case a couple of times already (you can catch up on the background here and here), and about the stark difference in the types of evidence put forward– plain language from the Alliance over the Crown’s convoluted legal jargon. 

The judge’s decision completely dismisses the evidence provided by sex workers, sex worker-led organisations such as Stella, Maggie’s and Butterfly (there are 26 in total), experts like Professors Cecelia Benoit and Christ Bruckert, and other progressive organizations who were intervenors such as the Canadian Civil Liberties Association, Amnesty International, Ontario Coalition of Rape Crisis Centres and Action Canada for Sexual Health and Rights, just to name a few. Instead, the decision reads like a regurgitation of the Crown’s factum and is incredibly flawed and condescending. In fact, the only not expletive thing I can muster to say about it is that the judge didn’t show good judgment when writing this decision. 

There are so many aspects of this decision that make my blood boil and yell “LIES!” In the decision, Justice Robert F. Goldstein writes: “Applicants’ evidence, especially the expert evidence, betrays a basic misunderstanding and misreading of the challenged offences.” So right off the bat, the court comes in heavy handed, and reinforces the stereotype that we’re dumb whores, that us poor dumb girls need a court or law enforcement officer to tell us that these laws are not in fact harming us, that maybe if we were more learned, we would understand these laws are for our own good. The court says that we’re looking for a “constitutional right to sell sex”, which is inaccurate, nor is there any evidence of this demand anywhere in the Alliance’s factum. 

“Sex workers are not asking for a constitutional right to sell sex,” said Clamen. “They’re asking for a constitutionally protected right to safety, security, equality and bodily autonomy. So [this] part of the judgement is disingenuous, and sends the wrong message about what sex workers want to the public.”

What follows, is a bizarre rant about how the court doesn’t find social scientists such as Professor Chris Bruckert, who is a criminologist at the University of Ottawa to be reliable, because she’s “an activist” – her many years of professional research led her to the conclusion that prostitution should be decriminalized as that makes sex work, and sex workers safer and less likely to be harmed. Even if the judge thought that Professor Chris Bruckert was an activist … so what? Why is that a bad thing? 

The court also rambles on about how qualitative methods in social science research aren’t reliable. I know we’re supposed to respect courts and judges as part of being a lawful and democratic society, but how does the court get to discredit academics this way? The court doesn’t believe the findings of social scientists, who have been speaking with sex workers for decades, but believes cops at face value. 

I’ve participated in social science research, some of it led by the experts in this case. I willingly contacted the researchers, made an appointment, and answered questions about my work. There’s a confidentiality agreement involved, so my privacy is respected. The researchers are pleasant ladies in cardigans, they do not carry guns, they don’t have the power to detain us.

When the court said, “I reject the assertion that a majority of sex workers are more concerned about the police than about human traffickers or exploiters,” they reinforced the stigma that we’re not only dumb whores, but lying whores as well. Not once have I initiated a conversation with police or other law enforcement about my sex work. Each time, I felt like I was intimidated into the conversation, like I had no choice but to speak with them. Every single time I spoke to cops, I always tried to reveal as little as possible while answering their questions, and tried to get out of there as quickly as possible. 

Also, not only does the court paint sex workers as ignorant about the laws that govern us, it goes further and refuses to believe sex workers when we speak about our own lived experience. 

“The Applicants argue that there is no evidence that sex work transitions to human trafficking, or that sex workers are subject to an inherent risk of human trafficking. With respect, I cannot agree. I find that there is a clear link between sex work and human trafficking. In fact, there is a considerable body of evidence that many sex workers are manipulated or coerced into sex work or trafficked while in it,” the judge’s decision goes on to read.

So members of 26 organizations who support sex workers across the country are not to be believed, social scientists are not to be trusted, but the handful of law enforcement officers that the Crown relied on are to be believed? Or is the “considerable body of evidence” brought forth by the same Evangelical fundamentalist groups that actively fought against banning conversion therapy such as Defend Dignity, how are they seen by the court as reliable and impartial? 

Unlike cops and fundamentalists, academics have to go through rigorous training and ethics reviews prior to working with marginalized populations, and then their findings have to withstand peer review, so I’m very not respectfully disagreeing with the court. 

It’s one thing to conflate human trafficking and sex work. It’s an egregious error in logic, but rejecting our concerns about police is more or less condoning state violence against us. Earlier this summer, at the strip club where I worked, us girls had to devise a new route to leave the club after our shift was over – we weren’t fleeing boogeyman traffickers, we were trying to avoid the one cop who would pull girls over and coerce them into sexual favors. So if these are the concerns for sex workers who work in less criminalized spaces such as strip clubs, the horror stories that our escort friends have lived through are exponentially worse. For a judge to reject our concerns, he might as well give a green light to cops that bring us harm.

In passing this judgement that doesn’t decriminalize sex work in Ontario, I agree with Clamen and the Alliance when they say that the court failed to take into “consideration the realities of marginalized people they’re supposed to. They failed to recognize those rights and the court [absolutely] erred. 

In the meantime, sex workers will continue to advocate, organize and resist, both as individuals and as part of community groups. I’m going to keep writing, continue my community work, go to meeting after meeting with my fellow sex workers and community allies, and hope that one day, all of our combined efforts are recognized by our lawmakers and judiciary system.

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Natasha Darling

Natasha Darling is a pseudonym to protect the author’s true identity from the stigma and harm associated with her sex work. Darling is a stripper and community organiser based in Toronto. Plant...