When Justin Trudeau’s Liberals were elected to a majority government four years ago, sex workers and sex workers’ advocates hoped change was coming. The Protection of Communities and Exploited Persons Act (PCEPA), enacted by the Conservatives in 2014, was heavily criticized by advocates and workers for criminalizing sex industry agents. However, even after a commitment from then Justice Minister Jody Wilson-Raybould to review sex work laws, and, according to Maclean’s, some consultations on the law, the Liberals didn’t address the issue of repealing or amending PCEPA again while in power. Meanwhile, research done in the intervening years has found that PCEPA may not have helped those engaged in sex work—in fact, it may have made things worse.
At a Red Umbrella march in Vancouver earlier this year, workers and advocates expressed their disappointment that the law was not reformed. One sex worker told the Georgia Straight that the legislation makes it “more difficult to screen clients.”
At least one party, the Green Party, has promised to reform sex work laws in its party platform. But other parties have not made specific promises. That’s why sex workers and advocates are fighting to ensure decriminalization will be a priority for the next government.
The criminalization of sex work in Canada
Sex work is an industry that intersects across populations, says Jenny Duffy, the executive vice chair of the board of directors at Maggie’s Toronto Sex Workers Action Project, an advocacy organization run for and by local sex workers. “With the rise of tuition rates and the lack of social support, it’s an industry that more and more people are turning to,” Duffy says. “Often we’re not even aware of all the people who are doing sex work because it’s so stigmatized.”
Yet, until 2013, most activities around sex work were criminalized in Canada. While the act of selling sexual services itself was not illegal, sex workers could not work in groups, in public or in one place, among many other limitations. These sections of the criminal code had major health and safety impacts on sex workers. In a report evaluating Canada’s sex work laws, Pivot Legal Society notes that after the communicating in public law was enacted in 1985, “the number of missing and murdered sex workers in Canada rose dramatically.”
In 2010, three sex workers—Terri-Jean Bedford, Amy Lebovitch and Valerie Scott—challenged the sections of the Criminal Code of Canada that banned communicating for the purposes of engaging in prostitution, operating a “bawdy house” and living on the avails of prostitution. The trio argued that under the Canadian Charter of Rights and Freedoms, these provisions were unconstitutional.
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The Supreme Court of Canada agreed with them. In 2013, in a unanimous decision, the court ruled in the trio’s favour. “The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks,” wrote then Chief Justice Beverly McLachlin in her reasons for the decision. The ruling gave Stephen Harper’s Conservative government a year to put a new law in place. Pivot Legal Society’s report outlines the choices the government at that time had:
“The first option was to simply remove the sections that had been found to be unconstitutional from the Criminal Code, which would have left sex work largely decriminalized in Canada, a solution similar to that adopted by the government when Canada’s abortion laws were struck down in the 1980s. The second option was to introduce new criminal laws that comply with the Charter. Sex workers, public health experts, human rights groups, and allied organizations argued for the first approach. However, the federal government immediately committed to drafting new laws.”
In 2014, PCEPA received royal assent. The act amended the Criminal Code to make it illegal to purchase sexual services, to communicate in any place for that purpose, to receive material benefits derived from the purchase of sexual services and to advertise sexual services, among other things.
However, the reality of PCEPA, says Jenn Clamen, the national coordinator of the Canadian Alliance for Sex Work Law Reform, is that it still criminalizes sex workers and their clients. “After (PCEPA) was enacted, for the first time, the exchange of sexual services for remuneration actually became illegal. So, that changes the context for sex workers—sex workers were also seen as victims after that.”
Why hasn’t decriminalization happened yet?
According to the Toronto Star, a study done in 2018 found that among sex workers in British Columbia’s Lower Mainland, a majority felt there had been no improvement in their working conditions since PCEPA came into force—and over a quarter found there were negative changes.
International research has also found that prosecuting clients had detrimental effects on sex workers. “Researchers from both Canada and France found that prosecuting men who buy sex instead of sex workers—known as the the Nordic model, or “end demand” approach—actually made life worse for sex workers by pushing the trade further into the shadows, making it more difficult to negotiate prices and condom use, and making it less likely that workers would access health services,” wrote health reporter and columnist André Picard in the Globe and Mail.
Duffy points out that if the Criminal Code didn’t include provisions around sex work, the work would be seen as legitimate labour. “The criminalization of sex work pushes sex work underground, and work that is pushed underground is more vulnerable to exploitation,” she says.
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According to Global News, during the 2015 election several Liberals, including Minister of Finance Bill Morneau, talked about wanting to reform or repeal Canada’s sex work laws. Former Justice Minister Wilson-Raybould told the Tyee that she was “committed to reviewing the prostitution laws.” But, aside from a resolution moved by the Young Liberals of Canada at the 2018 Liberal convention calling for decriminalization, the Liberals have taken no public steps towards decriminalization.
Liberal party spokesperson Eleanore Catenaro told FLARE that the “party remains committed to ensuring that all of our criminal laws are effective in meeting their objectives, promote public safety and security, and are consistent with our constitutionally protected rights. A re-elected Liberal government will continue to work to ensure that our criminal justice system respects victims, and holds offenders to account.” She did not answer specific questions about whether the Liberals would repeal PCEPA or why there was no reform during their first term.
Advocacy groups want decriminalization to stay on politicians’ radars. Earlier this year, over 150 organizations signed a statement of solidarity calling for the decriminalization of sex work in Canada. Additionally, a Charter challenge of the amendments introduced by PCEPA is currently awaiting a decision from a Kitchener judge.
“Getting the issue on the table has been very difficult for us,” notes Clamen. Sex work is often conflated with human trafficking, which Clamen says is very confusing for the public and the government, noting that is not something that happens when discussing other industries. “When we talk about working in a restaurant or we talk about nursing, people don’t talk right away about the trafficking that happens or the exploitation that happens, because they know when exploitation happens that they would call on mechanisms to adjust that exploitation,” she notes.
Where do the other parties stand on the issue?
FLARE spoke to Green Party leader Elizabeth May on October 17, while she was campaigning on Vancouver Island.
“This part of the world is where Robert Pickton got away for years with picking off sex trade workers and torturing them and murdering them,” she says. “If we’re a civilized society, it’s long since time we started treating every human being with dignity, and not so stigmatizing what they do for a living that they can’t be safe.”
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According to Global News, the Green Party is currently the only federal party to mention sex work in its party platform, promising to “reform sex work laws in Canada with a clear focus on harm reduction,” and “increase funding of community organizations providing services to those driven to sex work by economic deprivation.” May says that while the party hasn’t yet taken a position on whether they would reform or repeal PCEPA, they would not ignore it. “It makes life more dangerous for sex trade workers,” says May.
May adds that the Green Party has decided that the best way to deal with the “the horrors of human trafficking” is to make sure that sex workers have legal rights. But she also understands that for some sex workers, it is their chosen vocation. “It works in their lives, (and) they don’t want to be demonized or stigmatized,” she says.
In a statement provided to FLARE, an NDP party spokesperson said that party leader Jagmeet Singh has always been committed to engaging and listening to sex workers about their lived experience, and to involve them in decisions that will impact them. “He focuses on working with sex workers and communities in order to build a comprehensive strategy to end the violence and stigma that is all too often their reality. This will include reviewing and updating laws to ensure they protect, not stigmatize, sex workers.”
The Conservatives did not respond to FLARE’s request for comment on this story.
Duffy says there is no lack of evidence showing that decriminalization is the best way to ensure the safety, protection and dignity of sex workers. “It is a lack of political will to actually make the change to create legislation that decriminalizes sex work,” she says.
For Clamen, sex workers rights should be important to politicians because they are minority rights. “Minority rights are what human rights are supposed to be about,” she says. “So we’re supposed to care that there’s a minority of people whose rights are being contravened.”