The reality is grim, and the irony is cruel: the so-called Protection of Communities and Exploited Persons Act — a.k.a. the sex work bill — becomes law today, December 6, on the same day as Canada’s National Day of Remembrance and Action on Violence Against Women.
Sex workers and their allies know that this law flies in the face of theCanadian Charter of Rights and Freedoms, and also flouts the Supreme Court of Canada’s 2013 ruling in R. v. Bedford. Simply put, our government has decided to reproduce the very harms found to be unconstitutional in previous prostitution laws. It’s a misguided and potentially deadly move on the very day when we’re meant to reflect on the horror of Canada’s disturbing record of violence against women.
In Bedford, the country’s highest court struck down provisions in theCriminal Code that violated the safety, health and human rights of sex workers. The Court explicitly rejected the federal government’s argument that clients and others who may exploit or abuse sex workers are the true, sole cause of sex workers’ loss of security. The ruling rightfully explained that it was the law itself that prevented sex workers from protecting themselves against risks.
Many human rights advocates pointed out there was no need to craft new laws on prostitution rather, sex workers need to enjoy the full protection of existing laws such as those against assault, theft, forcible confinement or extortion. If there were to be new legislation, many of us hoped it would be rights-based and not reproduce the dangerous de facto criminalization of sex work that had just been deemed unconstitutional.
What we got instead was a new, more insidious kind of unconstitutionality — Criminalization 2.0. Our new law criminalizes sex work both directly — such as through a prohibition on sex workers’ clients purchasing their services — and indirectly — such as through bans on advertising sexual services. The new law also reintroduces slightly modified versions of the original offences of “communicating” for the purposes of prostitution and “living on the avails” of prostitution, which the Supreme Court had already deemed unconstitutionally harmful to sex workers.
And although the debate around the new provisions included a lot of handwringing over the need to protect sex workers’ health and safety, there was barely any acknowledgement of the primacy of human rights.
Sex workers have the same human rights as everyone else. Security is a human right. Health is a human right. Enshrining in law the criminalization of sex work – of sex workers, and of their clients and their workplaces – is profoundly inconsistent with the supposed concern for the health and safety of sex workers. They just can’t coexist.
Based on data from around the world, and on data about the impact of client “sweeps” periodically undertaken here in Canada, sex workers will be forced further underground, isolated to avoid police detection. The screening of clients and safely negotiating terms of transactions are likely to be rushed or simply bypassed under the new laws. Sex workers will be driven further from health and social services, particularly in cases of court or police imposed “red zone” orders which often ban sex workers from neighbourhoods where critical services exist. Sex workers’ ability to work indoors and with others for safety will be almost non-existent. In other words, the new Criminal Code will undermine their ability to take effective measures to protect their health and safety.
Nobody should for a moment buy the government’s spin that this legislation is about protecting women (as well as the men and trans people who also sell sexual services). It does the exact opposite. It makes sex workers and our communities less safe.
Internationally, many people understand this. Numerous leading health and human rights bodies, such as UNAIDS and the WHO, are increasingly calling on countries to decriminalize sex work in order to protect sex workers’ right to health.
Sex workers in countries such as Sweden and Norway, the home of the so-called “Nordic model” that criminalizes clients – and which Canada’s new prostitution law copies in some respects and goes well beyond – have spoken out for years about the harms they experience as a result of such an approach. Shouldn’t we be listening to the experts, public health professionals, our highest court, and sex workers themselves?
Our government seems to think it knows better, willing to compromise the universality of human rights in the name of some twisted sense of morality.
Stéphanie Claivaz-Loranger is a senior policy analyst at Canadian HIV/AIDS Legal Network.
Janet Butler-McPhee is director of communications and advocacy at Canadian HIV/AIDS Legal Network.
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