A coalition of sex worker human rights groups have launched a second constitutional challenge of prostitution laws, eight years after the Supreme Court of Canada struck down the former law because it put workers in danger.
The Conservative government responded to the court ruling in 2014 with changes that continued to criminalize buying, advertising or benefiting from the sale of sexual services.
That’s despite the 2013 Supreme Court ruling that struck down laws prohibiting bawdy houses, living off the profits of sex work and communicating in public for the purposes of prostitution.
“The spirit of the court decision was this recognition that the laws, as they were written at the time — which is very similar to how they’re written now — harmed sex workers because they were unconstitutional,” said Jenn Clamen, co-ordinator for the Canadian Alliance for Sex Work Law Reform.
“They didn’t allow sex workers to put mechanisms into place around safety and security and health. The government disregarded the Supreme Court decision.”
While the new law was supposed to be reviewed five years after it was put in place, that still has not happened.
And the Trudeau Liberals, despite promising to repeal the law during the 2015 election campaign, have left the Harper-era law in place.
The constitutional challenge announced this week calls for the court to strike down sex work law prohibitions against impeding traffic, public communication, purchasing, materially benefiting, recruiting and advertising sexual services.
The alliance is arguing those Criminal Code prohibitions “violate sex workers’ constitutional rights to security, autonomy, life, liberty, free expression, free association and equality.”
The COVID-19 pandemic has highlighted how sex workers are shut out of many parts of society. Sex workers have seen their incomes drop but haven’t been able to collect income replacement benefits like the Canada Emergency Response Benefit because their work is illegal.
The current law is supposed to target the buyers of sexual services and third parties who profit from sex work and prevent human trafficking and exploitation.
But advocates say the law pushes sex workers into the shadows and puts them at higher risk of experiencing violence.
“It’s just criminalization across the board that is preventing them from reaching out to law enforcement if violence happens,” said Alison Clancey, the executive director of SWAN Vancouver, an organization that advocates for immigrant and migrant women who do indoor sex work.
“It means that they spend valuable time every day evading police when they should be using that time to put safety measures in place to protect them from predators, which they cannot do because of the prostitution laws.”
In addition to prostitution laws, Clancey said the sex workers that SWAN represents also fear being deported or targeted by police anti-trafficking operations.
While politicians and police often emphasize the need to help people who have been exploited or trafficked — the name of the legislation introduced by the Conservatives in 2014 is the Protection of Communities and Exploited Persons Act — Clancey and Clamen said there’s an overemphasis on anti-trafficking enforcement compared to the actual size of the problem.
Many police forces in Canada, including the Vancouver Police Department, say they do not enforce prostitution laws. The VPD says officers have not arrested any sex worker for a prostitution offence in over a decade.
But police choosing not to enforce prostitution offences isn’t the same as decriminalization, Clamen said.
“What they’re doing still is surveilling and monitoring sex work establishments under the guise of anti-trafficking initiatives,” Clamen said.
“The cases where they find people who are actually defined as trafficked and are actually underage are very minimal. But the damage that they’re causing in the meantime is that they’re going to sex work establishments, they’re detaining and deporting sex workers who are migrants, and sex workers in all of the industry are still putting things into practice in order to avoid that detection.”
The prohibition against communication means sex workers can’t be upfront about what services they offer and the cost, and makes it harder to get full information about the identity of clients.
The prohibition against advertising means sex workers can’t use third party platforms that could save them time and money.
The prohibition against purchasing sexual services is sweeping. It “makes it illegal for clients to purchase sexual services in any context at any time with anyone,” said Clamen.
“So wherever clients are purchasing sexual services is an illegal act, and sex workers are privy to that illegal act.”
Advocates say all of the prohibitions put sex workers in danger and make it less likely they will report violence to police.
Clancey said the recent murders of six Asian women in Atlanta, apparently killed because the perpetrator associated them with sex work, are a reminder of the dangers that sex workers face. A 2015 survey of Asian sex workers in Toronto and Vancouver found that 95 per cent of them would not report violence to police.
“It’s not the act of selling sex that’s inherently violent. It’s the laws around selling sex that impedes people from keeping themselves safe,” Clancey said.
“Despite anyone’s moral views of the sex industry, I hope people could understand that everyone in society, however they earn income, deserves protections and legal and labour rights.”
Mounting a constitutional challenge is a long and exhausting process. It took five years for the original case to wind its way through Ontario courts and reach the Supreme Court of Canada.
Advocates say it’s frustrating to have to start the process all over again, but the first constitutional challenge, known as the Bedford case, did change how many Canadians view sex work.
“The Bedford case did absolutely advance the public discourse and legal discourse around sex workers' rights,” Clamen said. “It really changed the way that we organize, the way we are permitted to talk about sex workers’ rights publicly, and the way that people actually care about sex workers’ rights more now.”