When it comes to legal issues surrounding sex work in Canada, there are no easy answers.
I sympathize with the coalition of sex workers and advocacy groups that presented arguments in a Toronto Superior Court hearing in October, asking for the full decriminalization of sex work. They say that under the current legislation, sex workers are being harmed and exploited instead of being protected.
To understand the current laws in this area we have to go back to the 2013 Supreme Court of Canada decision in Canada v. Bedford. This landmark case involves three women in the sex trade. They argued they were unable to conduct their business safely due to laws governing where and how they could operate.
In striking down legislation prohibiting brothels, living on the avails of prostitution and communicating in public with clients, Canada’s top court ruled the laws were over-broad and “grossly disproportionate.”
"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes," wrote Chief Justice Beverley McLachlin in the 9-0 decision, adding "it is not a crime in Canada to sell sex for money."
I thought Bedford was wonderful. It helped the public understand that not all sex workers are exploited. Instead, we had three women who openly discussed their chosen profession and the issues they faced due to legal constrictions.
This case is “not about whether prostitution should be legal or not. [It is] about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not," McLachlin wrote in her decision.
"I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament."
The federal government was given a year to come up with a solution and returned with the Protection of Communities and Exploited Persons Act (PCEPA), which was denounced in the Superior courtroom in Toronto in October.
"PCEPA criminalizes communicating to sell sexual services in public, communicating to purchase sexual services in any context, facilitating or receiving a benefit related to the purchase of someone else's sexual services, and advertising sexual services," the coalition argued, according to a news report. "Sex workers are criminalized, stigmatized and discriminated against under PCEPA.”
Under the Act, the coalition argues that many sex workers are forced into isolation, unable to access safe indoor workplaces and prevented from meaningfully communicating with clients to access information related to their health, safety, and ability to refuse or consent to sex.
The Criminal Code amendments the Act introduced are somewhat disconcerting to read. They contain language outlawing the exploitation of women, men and children for sexual purposes. That is laudable, but there are times sex workers might not know they are being exploited. Or instances where an individual may not necessarily consider themselves to be exploited. However, under this legislation, they are.
We need to protect individuals in those settings. Sex work is not an everyday career, and most practitioners will be apprehensive about telling others what they do. Yet some people feel that voluntarily selling their sexual services may be their only option to earn an income.
We also need to understand that individuals who are associated or living with sex workers are not all pimps, though that does happen. I have seen cases involving victims of human trafficking. But in other instances, people close to the sex worker are not taking advantage of them or living on the avails of prostitution. They know their partner is doing a job. That is why it is sometimes difficult to determine if someone is a “john.”
The coalition that addressed the Toronto court asked that sex work be decriminalized in Canada. "Remove sex work from the Criminal Code and start to think about other mechanisms beyond the Criminal Code that can actually help to protect sex workers," one woman argued, according to the media report.
This is a complex issue. I agreed that sex work should not be criminalized unless it involves children or those who have not given their consent. Let’s focus instead on those who force others into this profession. They are the ones who should be prosecuted.