Photo by Matjaz Slanic / istock
When the federal government released new prostitution laws last week, it introduced what sex workers and legal experts say are not only unconstitutional but harmful regulations.
The government says the purpose of Bill C-36, the Protection Of Communities And Exploited Persons Act, is to protect sex workers, but by criminalizing the purchase of and prohibiting advertising for sexual services, it does the opposite by exposing them to more dangerous situations. The act also prohibits selling sexual services anywhere a child could reasonably be present.
Brenda Cossman, a law professor at University College, U of T, says the new law's ban on advertising in print or online is in violation of the right to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
"They've enacted laws that are different than the laws that were struck down," she says. "But the harms they cause are likely going to be the same. It's not illegal to sell sex, but it's illegal to buy sex. It's criminalizing one side of an unusable coin."
The new act also makes conducting business nearly impossible by criminalizing communicating for the purpose of selling sexual services in "public places where a child could reasonably be expected to be present."
"That's basically anywhere," says Jean McDonald, executive director of Maggie's Toronto Sex Work Action Project, a group for sex workers run by sex workers. "What we are going to see with this legislation are more murdered and missing women."
McDonald says sex workers will be pushed into unsafe areas. Without the ability to advertise either online or in print, they'll be unable to screen clients, and many will make quicker, potentially unsafe decisions. With advertising, you can speak to and email clients and negotiate a rate, discuss safer sex practices and sometimes get references.
"Often clients will even give you work information, but they will not do that if they're worried about being arrested." If sex work can't take place in public or online," McDonald says, "they're criminalizing the industry."
Jeff Kingsley, who has been a sex worker for five years, sees the law as supporting stereotypes and overlooking many sex workers. "This legislation seems highly focused on protecting women, and it's perpetuating the idea that prostitutes are only women," he says.
"It's regressive from a sexual politics perspective and highly moralistically informed."
A Canadian study published in the British Medical Journal on June 2 says that criminalizing clients reproduces the harms of criminalizing sex work. It leaves sex workers exposed to violence and potentially forced into unprotected sex. The study was conducted in Vancouver, BC after the police department there adopted a new enforcement policy in January 2013 that targets clients while ensuring sex workers' safety.
The new federal legislation also explicitly says, "Prostitution is an inherently dangerous activity."
For Vanessa D'Alessio, who's been in the business for five years, that's contributing to the stigma that puts sex workers at risk, allowing "for things like Robert Pickton to happen."
Pickton is the BC man convicted of killing six women in 2007 and charged with killing a total of 23, many of them known prostitutes.
Conducting business on the internet "really is the safest way across the board for people to work in this industry," she says. "Not only is this act limiting our tactical safety mechanisms; it's contributing to a culture that says sex workers experience violence and that it's okay."
The bill also seeks to increase penalties for child trafficking and child prostitution. While the number of children involved in prostitution is unknown, according to Statistics Canada there were no recorded cases of trafficking in persons under 18 between 2008 and 2012.
For that same time period, the number of people charged with trafficking in all of Canada increased to just under 50, less than half of whom were convicted. Bear in mind that trafficking is under-reported because people often fear for their lives, and that these numbers don't reflect whether people were trafficked for sex work or slavery, because Statistics Canada does not track that information.
When Minister of Justice Peter MacKay introduced the act in Parliament on June 4, he cited studies showing that human trafficking increases when prostitution is legalized or decriminalized.
Of the two studies provided to NOW by the Ministry of Justice, a Swedish study from 2010 does not mention Canada at all. The other, published by Elsevier in 2012, looked at 150 countries including Canada and says countries with legalized prostitution reported a higher incidence of human trafficking.
However, of the three countries chosen as case studies where sex work was legalized or decriminalized, the Elsevier study obtained sufficient information from only one country, Germany. This hardly makes a representative sample, and the majority of researchers involved were based in German universities and institutes.
Bill C-36 is a response to the Supreme Court's December 2013 ruling in favour of three sex workers, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, who argued that Canada's prostitution laws were unconstitutional because they drove the legal act of prostitution underground and put sex workers, mostly women, in harm's way, violating their rights of security. The overturned laws involved keeping a common bawdy house, living off the avails of prostitution and communicating for a sexual transaction in public.
NDP justice critic Françoise Boivin calls the new legislation a sad response to the Bedford decision. She says it gives the impression that the Harper government has no regard for the Supreme Court. After a cursory discussion with various provincial ministers, she says, "They won't apply the whole law. We're going to have a country that applies laws differently from one end to the other."
C-36 also doesn't take into account the resources necessary to apply the various new offences. Although the bill earmarks $20 million to help grassroots organizations and those who want to exit sex work, Boivin says, "We know prostitution is sometimes based on addiction and poverty, so $20 million is just a drop in the bucket."
Ultimately, Boivin feels this act will lead to more legal challenges like the Bedford case, and she has many questions about its constitutionality. In her opinion, the feds should refer the act directly to the Supreme Court now.
Liberal justice critic Sean Casey sees the Conservatives' move as a deliberate one. "They are knowingly introducing an unconstitutional piece of legislation to kick the can down the road." He says he would be surprised if someone had not told them this act is unconstitutional. Because of the length of time the bill will take to wind its way through the courts, anywhere from two to five years, "it rids them of the immediate problem of responding to the Bedford decision, and it rids them of the problem until the next election."
What's prohibited in the new act
- Purchase of sexual services and communicating in any place for that purpose
- Profiting from the prostitution of others
- Advertising the sale of sexual services online or in print
- Communicating for the purpose of selling of sexual services in public places where a child could reasonably be expected to be present