Sex work 101: Making sense out of Canada's nonsensical sex work legislation

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Photo: flickr/Véronique Debord-Lazaro

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Recently, Minister of Justice Peter MacKay announced Bill C-36, which introduced new legislation on sex work, and generated a flurry of commentary.

Sex work is a polarizing topic in Canadian politics with most commentary falling into two camps: the "anti-sex work/pro-Nordic model/abolitionist" camp and the "pro-sex work/sex worker rights advocates" camp.

So, what does this all mean? Well, we've compiled the following in attempts to make sense of what appears to be a rather nonsensical process.

What were the previous laws around sex work?

It was legal in Canada for adults to buy and sell sex because there were no laws prohibiting the exchange of sex for money.

The following activities were illegal:

  • Operating a brothel

  • For third parties to take earnings from sex workers in exchange for a service related to sex work; this criminalized pimps, but also made it illegal for sex workers to employ bodyguards and drivers

  • Communicating for the purpose of selling sex in public, including a private vehicle

These laws framed prostitution as a public nuisance to be controlled.

Why were these laws changed?

In 2007, three sex workers, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, launched a charter challenge, the Bedford Case, against the federal government, arguing the above provisions violated their Section Seven rights under the Charter of Rights and Freedoms by forcing them to work in unsafe locations, and impeding their ability to protect themselves.

In December 2013, the Supreme Court of Canada struck down the provisions listed above, stating that they were too broad and did not ensure the protection of sex workers. It gave the government one year to introduce new legislation.

So how's the new legislation different?

At a press conference MacKay stated, "The sale of sex has never been illegal in Canada, but today we are changing that." 

Under Bill C-36 selling sex is legal, but buying it is not. Advertising another's sexual services is illegal, as is keeping a brothel.

The new law makes it illegal to communicate for purposes of selling sex in a public area were people under the age of 18 could reasonably be present.

Sex workers can employ bodyguards and drivers. Pimping is illegal.

This legislation's underlying principle is that sex work is violent and harmful. The goal is to reduce demand for sexual services.

And, as Mercedes Allen stated, "Apparently [MacKay] decided Canadians wanted sex work criminalized in such a way that sex workers wouldn't always be technically charged, but it would be otherwise made totally impossible to work legally and safely."

What do advocates for the Nordic Model say about Bill C-36?

The Nordic Model is a form legislation applied in Norway, Sweden and Iceland. It criminalizes buying, but not selling sex, arguing that sex workers are victims and shouldn't be punished.

Bill C-36 adopts some Nordic principles, but the ban on communicating to sell sex in places were people under 18 might be present is unique to the proposed Canadian legislation, which concerns proponents of the Nordic Model. MacKay has dubbed his version the "Canadian model."

The Canadian Federation of University Women stated, "While CFUW agrees with the aspects of the bill that focus on criminalizing the purchase of sex and targeting demand, we are concerned by the provisions that will make it illegal to sell sex in some public spaces." They argue this will continue to punish sex workers who, they say, should be treated as victims not criminals.

Others, such as the Women's Coalition for the Abolition of Prostitution, say the bill doesn't adequately address racial, gender and other inequalities that force people into prostitution.

What do sex workers and advocates say?

Sex workers and advocates condemn Bill C-36, arguing it doesn't mitigate the harms identified by the Supreme Court ruling. "What the government is doing is recreating those harms. Recreating those harms in, I would say, in a more dramatic way," says Laura Dilley, Executive Director of the PACE Society, a sex worker led organization.

PACE, and allied groups, argue that criminalizing buying sex puts sex workers at risk by forcing them to solicit clients in isolated areas where they cannot screen or negotiate safely. These concerns are supported by a recent study on street-based sex work.

Karry Proth, the Chair of Pivot Legal Society and a former sex worker, notes that criminalizing clients also makes indoor sex work less safe. "Indoor workers will have to abandon some of their safety precautions, such as screening their clients, because clients will be less likely to give a real name and a real phone number if they are concerned that they are speaking to a police officer." Plus, as clients will fear entering a brothel, more indoor sex workers will work outdoors, where they are more vulnerable.

Proth also is concerned that the new law will increase pimping, which the bill claims to prevent, because third parties will have to negotiate and screen for sex workers in order to protect clients from police detection.

Sex workers and advocates argue that selling sexual services must be viewed as a legitimate profession (as opposed to a criminal or harmful act), and the rights of sex workers prioritized -- which Bill C-36 fails to do.

So what happens now?

PACE, and the NDP, are demanding the bill be referred to the Supreme Court to determine if it will sustain another charter challenge. However, during the second reading of the bill, on June 11, McKay dismissed these requests.

It is more likely the bill will proceed to the Justice Committee and then Senate. If the bill is passed, --probably in the fall -- it will become law.

If this happens, Pivot will then issue another charter challenge, arguing the bill violates Section Seven of the Charter (as the previous legislation did), and possibly Section Two (on freedom of speech). The case will go to the BC Supreme Court, and then the Supreme Court of Canada.

While Proth does not expect the bill to pass constitutional muster, she notes that the process will take three to five years. She says, "The sad reality is that in the meantime circumstances on the ground for sex workers are not going to change. These laws go further than the previous laws did in terms of creating an environment where sex workers are far more vulnerable to exploitation and violence."

What do you think about the new sex work laws? Let us know!

Julia Smith is an international development and research consultant. She has worked in Canada, Kenya, South Africa, Sierra Leone and the UK for organizations such as Positive Living BC, the SEND Foundation of West Africa, the Health Economics and HIV/AIDS Research Division, and Canadian Co-operative Association. Julia holds a Master's of Arts in Peace Studies, from the University of Bradford, and a Bachelor of Arts Honors, in History and Professional Writing, from the University of Victoria. She is currently completing her PhD in Peace Studies at the University of Bradford, researching the role of civil society organizations in promoting human rights responses to HIV/AIDS. When not studying, working or traveling, Julia can be found hiking, skiing, reading novels or baking cakes.

Photo: flickr/Véronique Debord-Lazaro

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