A Closer Look: The Battle to Decriminalize Sex Work in Canada

Painting by ErinMarie Tankupine
Painting by ErinMarie Tankupine

The question of decriminalization of sex work in Canada has been a hot button issue ever since the recent Canadian Supreme Court decisions in Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) 2012 SCC 45 and the 2013 Canada (Attorney General) v Bedford case. As a result of Bedford, on December 20th, 2013 the Supreme Court of Canada struck down three anti-prostitution laws:

1. Bawdy house law – which banned sex workers from hosting clients at an indoor location.

2. Living on the avails – which banned sex workers from working with anyone else (drivers, security personnel, call-bookers, etc.) if that person was being paid.

3. Communicating – Criminalizes any sex worker communicating for the purpose of sex work in a public place near parks, schools, playgrounds or daycares.

In agreement with the sex workers who brought this charter challenge, the Supreme Court found that these laws were harmful to “the health, safety and lives of prostitutes” & that they were unconstitutional. They gave Parliament one year to come up with new legislation -should it choose to do so.

In response to the Court’s decision, on December 6th, 2014 the majority Conservative government of Prime Minister Steven Harper introduced into law Bill C-36, formally called the Protection of Communities & Exploited Persons Act (PCEPA). In essence, PCEPA attempts to legislate sex work out of existence. Justice minister Peter Mackay has stated that this law aims to abolish prostitution.

According to a fact sheet provided by the Sex Professionals of Canada (SPOC) the effects of PCEPA are the following:

– Makes all clients criminals and any of their inquiries about sexual services or prices are illegal.

– Labels all people doing sex work as victims. It infantilizes, pathologizes and stigmatizes sex workers.

– Criminalizes any sex worker communicating for the purpose of sex work in a public place near parks, schools, playgrounds or daycares.

– Criminalizes third parties if they “receive a material benefit” from anyone providing sexual services. No one can provide goods or services to sex workers “in the context of a commercial enterprise” that offers sexual services for money. So an escort could take a cab to a hotel, but she could not have her own security/driver. No one can work in networks or businesses like escort agencies or massage parlours. A sex worker must work in isolation to do so legally.

– Criminalizes the carriage of sex worker advertising. Any newspaper, manager/owner of a website or internet service provider hosting that website is committing a crime.

90% of sex work is done indoors. Cutting off any means to advertise serves to greatly diminish the incomes of the people doing this work.

In order to understand the issues and get some perspective on the battle for sex worker’s rights, I recently spoke to Naomi Sayers, creator of www.kwetoday.com, indigenous feminist and sex work activist currently enrolled in the common law program at the University of Ottawa and Julie Grant of the Sex Professionals of Canada (SPOC).

Progressive Lawyer: First of all I think it is important to clarify the difference between legalization of sex work and decimalization. What is the difference?

Naomi Sayers: These two terms are often assumed to have the same meaning. For sex workers’ rights, the goal is complete decriminalization. This means that sex workers, sex work activists and allies are working to remove the provisions that criminalize prostitution from the Criminal Code of Canada. Legalization is different from decriminalization and often times it is synonymous with regulation. Regulation already happens in several Canadian cities and it is not ideal especially for the most marginalized and vulnerable sex workers, like those who work outdoors.

There is a difference between these two terms in sex workers’ lives especially when it comes to their safety and security. On one hand, legalization still targets the most marginalized and vulnerable in negative ways that does not help to keep them safe. When it comes to decriminalization, on the other hand, the focus shifts away from the act of prostitution. So if a sex worker needs to call the police because they experience violence, then they will be more empowered to make those calls instead of seeking to avoid the police out of fear of criminalization.

The end goal—decriminalization of sex work—is important for sex workers because their lives depend on it. We only have to look to examples where serial killers, like Robert Pickton or John Martin Crawford who targeted sex workers, to see the importance of decriminalization of their working lives.

PL: With recent court cases cited above and the governments answer in PCEPA (Bill C-36), what are the issues and why are they so important for sex workers?

Julie Grant: The primary issue is the right to safety and security for people doing sex work. Those rights were denied to us by the 3 unconstitutional laws that were challenged and struck down. Sadly they have been duplicated and added to with the Protections of Communities & Exploited Persons Act (PCEPA/C36).

Once again the laws require that we work alone. No one can provide services to us *ìn the context of a commercial enterprise* that offers sex for money – which is what we do.

All of our clients are now deemed to be acting criminally. How will police catch these criminals/clients? By following us? Who will be required to testify against a client? We will. In Sweden the police stake out incalls (indoor spaces that sex workers use to host clients) and street worker locations (outdoor) to accomplish this. Besides entrapment-like baiting, surveilling sex workers is how police catch clients. These clients haven’t abused anyone. The crime is the payment for sexual services. We want and need that payment.

PL: Julie, you are active with SPOC, what do you do there and what kind of activities has SPOC been involved with in trying to initiate change?

JG: SPOC is a volunteer run activist network that engages in advocacy and education. We operate on the principle that all forms of consensual adult sex work are valid occupations. SPOC maintains that sex workers deserve labour rights, and occupational health and safety standards defined by sex workers themselves.

We oppose those who seek to ‘rescue’ sex workers using force or coercive measures including court imposed re-education/exit programs, jails or camps. We also oppose the constant conflation of sex work with human trafficking.

We stand for the decriminalization of all forms of sex work in Canada. We oppose legalization because it is always exploitive toward sex workers.

Towards those ends we do public speaking, provide a bad date list, provide court support, participate in conferences and other educational events, we are accessible by phone and email to answer questions from sex workers and members of the public. Two of our members -Amy Lebovitch and Valerie Scott, were applicants in the charter challenge (Bedford case). We also work with people, businesses and organizations who are trying to navigate through the swamp which is the new law -PCEPA.

PL: Naomi, as an activist very much involved in this issue as well, what kind of activities have you been involved with in trying to initiate change?

NS: Well this is a difficult question. I have been involved with a lot of things to initiate change. A lot of this stuff is the unglamorous and not-so-sexy side of activism. There is a lot of organizing, communicating with other groups, building networks and staying up to date on information that the government puts out or research that becomes available. I am lucky though because the sex work and sex work activist community is hugely supportive and literally, without them, I would be nothing. However, at the moment, I am specifically reaching out to other individuals who I met in 2014 to help them become more involved and active. And I am not the only one doing this—there are a lot of groups and individuals who have been doing this work for a long time. So there is always community building going on. But right now, there is a lot of organizing and strategizing for 2015! The work didn’t end on December 31, 2014 and it certainly won’t end until we achieve our goal where sex workers are treated as persons too!

PL: What kind of support are you receiving from the general public?

NS: The support from the general public has been both immense and overwhelming. Throughout all of 2014, the government’s tactics were slimy in how they pushed the new law through with little to no consultation from sex worker organizations. Justice Minister even said that he didn’t want to hear from sex worker organizations! They had to fight to be heard and even then, only a few were invited to consultations (the government opted to hear from religious groups as opposed to groups that would be directly affected by the new laws).

The general public picked up on this too. I received a lot of messages in public and in private through social media and through my blog from people I have never met who voiced their anger and annoyance about the government’s approach. A lot of them reached out asking how they can help support sex workers and that is probably the best approach that any member of the general public can take. There were also times where sex workers and sex work activists on social media started letter writing campaigns and that is one way that the general public helped a lot!

People often don’t think that politicians don’t read their emails or the letters they receive but they do. It only takes a few moments to send an email or a couple dollars to send snail mail—in fact you can send your politician postage free mail (so you only have to pay for the paper and envelope). But the mail gets to them and they do read it. The general public has also been more engaged and wanting to ask questions about sex work and how they can help make their own organizations sex work(er) inclusive. Throughout all of 2014, despite the government’s approach to shut out sex workers’ voices and experiences, the general public provided that glimmer of hope for change. It was really beautiful to have random strangers reach out and asking how they can help. They need to keep doing that!

JG: The public has listened and been receptive in general. A lot of educating has gone on since the beginning of the charter challenge in 2007. People used to believe that the purchase and sale of sexual services was illegal, which it was not. Upon realizing that prostitution was not a crime (nor should it be) the public recognized the injustice of having nuisance laws that put us in harm’s way. They have been supportive of decriminalization with polls showing that number consistently rising.

PL: Julie, how do you feel SPOC and sex workers in general in this debate are being viewed by the courts and the government? Are you being taken seriously, especially by the Conservative government in power or are your concerns being treated in a dismissive manner?

JG: I think the current government (conservatives) has infantilized sex workers and is using us as pawns in their political game. They have refused to acknowledge that sex work is work. They preferred to solicit the opinions of prohibitionist groups and individuals. They have continually characterized this work as being about sex-slaves and children, while PCEPA deals with neither of those situations. This law applies to consenting adults. Other laws are in place to address such abuses.

Sex workers have now been officially designated as “exploited persons” in law. That comes with a cost to us. We are seen to have selected victimhood. In Sweden (end-demand/sex-worker=victim model) people in the sex trade have lost custody of their children because of the work they do and their assigned exploitedness. We are seen to have compromised decision making abilities because of these labels.

People hear about how dangerous our jobs are and not about how safe we have made them. We have created safety networks which have been recriminalized with PCEPA. We have developed security systems including screening methods which have been attacked by this law, particularly the ad-ban. Most print publications now refuse to publish our ads. Some online venues will place them if we make them so vague as to not be recognizable as sex work ads. This is dangerous. Now people seeking our services are afraid to be specific because they can be charged. They fear we may be undercover cops. We have an increased likelihood of conflict because we cannot be specific about prices and services upfront. The fear of charges and the drop in ad exposure has resulted in an unprecedented income drop for sex workers. Some have already become homeless. Many more are on the brink.

The proponents of this law kept talking about going after the “johns and the pimps” but it is the sex worker who suffers most. We knew this. They didn’t want to hear about it. PCEPA has been ushered in under the guise of “protection” which is the last thing it is. It has driven us further underground putting us at risk from predators but more imminently, we are at risk from the poverty that this law is facilitating.

PL: Is this a moral issue (as some would portray it) or a right to work issue?

NS: Focusing on the legal aspects, this is literally a right to life, liberty and security of person issue—a Charter issue. Sure morals get tied up into the argument, especially among those who do not support sex workers’ Charter rights. But this isn’t about morals. If we take away people’s pre-conceived notions about sex work or the sex trade, then we can move away from these moral issues. And yes, for some, this is about a right to work issue and that is great that some people can engage in this issue from that perspective.

It is also great that we have been able to receive some support from labour unions like OPSEU and CUPE. But we have to be careful to not think of this as a completely right to work issue since that erases many experiences from those who may only sell their sexual services to help make ends meet at the end of the month (like having specific arrangements among one or two gents per month) or those who may have been previously exploited and who wouldn’t call what they did work (and yes, there are people with those experiences who do support the decriminalization of the trade for obvious safety reasons).

The key point here is that the movement uses the term sex work, but that doesn’t automatically apply to everyone’s experiences that support decriminalization of sex work. Ultimately, we have to be careful about the language we use. There are even some people in the sex trade who still prefer to call themselves hookers, whores or prostitutes! It’s more about self-determination and right to identify as one chooses. There is nothing inherently bad about calling one self a prostitute. But there is a stigma attached to that label through the social construction of the prostitute as the Other in western society and we see this when we criminalize something, like prostitution. After all, that is the term still employed within the criminal code. There is a nice info-sheet put together by Stella, Montreal’s sex work(er) organization, that outlines the language issue.

JG: This is largely a right to work issue. People who are morally opposed need not apply or partake. Sadly, moralism drives the saviour train. Groups flock and lobby for dollars to save sex workers from work that involves sex. These people deem this work to be exploitative simply because of the sexual aspect. Many types of workers are prone to exploitation, but they don’t have special laws and organizations plotting to eradicate their jobs.

The rights of people to do sex work and do it safely are under attack. We support ourselves and our families with this income. We should be able to work in businesses such as escort agencies, massage parlours, in informal groups or as independent workers. We should be able to advertise without having the carriage of those ads made illegal. We can’t survive without clients. We want them. We need them. Predators are criminals. People who are simply paying for our services should not be put in that category.

Refusing to respect our agency as people making our own decisions is patronizing. We do make the decision to do this work and even if those choices are constrained in some situations, who are these self-appointed rescuers to kick out the crutch that allows some of us to keep going? Sex work and the income it brings us, improves our lives, or most of us wouldn’t do it.

PL: Do you feel that prostitution should be legalized and why?

JG: We do not want legalization. The last thing we need is to be regulated into submission by an entity that has proven that consultation with us is not a priority. They enacted legislation that we believe is both extremely harmful to all people doing sex work on top of being unconstitutional. They can’t be in charge of our jobs.

We endorse decriminalization which is simply the removal of criminal sanctions that make our working conditions dangerous and now criminalizes our clients. It is also discriminatory to make laws that diminish our incomes and our right to advertise – especially when selling sex is still legal…..or is it?

NS: Sex work needs to be decriminalized. Legalized sex work is just another form of regulation and there is a lot of self-regulation among sex workers and within their workspaces. They don’t need more regulation dictating their lives/workspaces. Decriminalization is important because it is about putting the power back into the sex worker’s own lives (literally).

Thank you both for your time in stating the issues and advocating the cause of sex worker’s rights. This has been very illuminating for those of us who may not have been completely aware of the issues and why they are so important.

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