Bill C-36, The Protection of Communities and Exploited Persons Act, was passed and received the royal assent to become law.
As many have stated, although the new law is supposedly about “protection” of sex workers, it will continue to endanger sex workers’ lives and violate their human rights instead because of its continued criminalization of sex work.
Criminalizing services — including purchasing sex, prohibiting communication in many public places and restricting advertising — will largely recreate the same problems identified by the court in Bedford. It will force this work to go underground and will further restrict and stigmatize sex workers.
Furthermore, not only will it increase the isolation and exclusion of all sex workers, it will have an especially negative impact on racialized and migrant sex workers, affecting their health, equity, dignity, safety and human rights.
Vulnerability of migrant and racialized sex workers
Racialized and migrant sex workers are especially vulnerable because of the factors of immigration status, language barriers and race.
Migrant workers may have different types of immigration status, such as permanent residence, visa holders or are under sponsorship or refugee claimants.
Since 2012, all migrant sex workers have not been eligible for temporary work permits in Canada.
These migrant workers who cannot access regular channels of work may need to work in underground economic sectors, such as sex work, because these may be the only options available, or, in many cases, the best option for some of them.
Moreover, the change of immigration policy in recent years, also restricts some of the migrant work that can be done legally in Canada. Therefore, migrant sex workers are forced to seek out underground methods of migration and work.
Because migrant sex workers are often racialized, poor and working class, they are not always able to access the information or social supports they need because of language barriers and the stigmatization of sex work in their own community. Also, some migrant sex workers are excluded and isolated from the society in which they live.
Not only that, but the new law prevents concerned groups and individuals from having any discussion of the main reasons for the vulnerability of migrant sex workers. It is wrong to assume all sex workers, in general, are victims, and that all racialized and migrant sex workers, in particular, are being trafficked.
This vulnerability is not due to the conditions of the sex work itself; rather, it is a situation caused by the Federal government’s criminalization of sex work and its restrictive policies on migration.
Lastly, advertising is a very effective tool for sex workers to empower themselves because they can use it both to obtain information about the sex industry and build a support network with other sex workers. Advertising also communicates important information to the services providers to enable them to reach out and support this hidden and marginalized community.
The new communication law, which criminalizes the communication of the sex services in public place, means the fear of harassment and arrest will continue to exist among sex workers working on the streets.
This impairs the ability of sex workers to gain the assistance and protection of a third party. The illegality of material benefits for a third party also interferes with the sex workers’ ability to be protected by labour laws.
Also, Bill C-36 may also increase how often — and how intrusively — police and other public authorities investigate the sex workers’ places of business.
How can we actually protect sex workers?
The new law does not address these issues that particularly affect racialized and migrant sex workers, but, instead, uses moralistic anti-trafficking language to cover the racialized, moral panic of Canadians against migrants.
Because of this, the police and other government authorities may use the prostitution, anti-trafficking and immigration laws to justify their investigations and raids. As a result, migrant sex workers may be arrested, prosecuted and deported.
The Canadian government must drop its crass, legalistic response to the Bedford decision and consider an approach that is not just constitutional, but, more importantly, both principled and pragmatic.
Three steps are needed to achieve these objectives:
1. Scrap the new law entirely.
The criminal law against sex work is unconstitutional and a costly new legal confrontation is as inevitable, as it is unnecessary.
2. Completely decriminalize sex work by repealing all laws that criminalize sex workers, clients and third parties.
To accompany the removal of negative legal prohibitions from the past, the government should take positive steps to shape the future. Sex work should be recognized as the work to secure the rights and livelihood of all sex workers, regardless of sector of the industry in which they work.
3. The government should formulate policies that will effectively eliminate discrimination against sex workers.
If we do these, the actual protection of sex workers will occur.
Elene Lam is an organizer for Butterfly, an Asian and Migrant Sex Workers Support Network based in Toronto, which provides support to, and advocates for, the rights of Asian and migrant sex workers. The organization is founded upon the belief that sex workers, like all workers, are entitled to respect and basic human rights. Further, Butterfly asserts that, regardless of their immigration status, Asian and migrant sex workers should receive the same respect and human rights as other workers.
Photo: flickr/liz west