In a December 2013 decision, the Supreme Court of Canada made history. Its unanimous decision in Canada (Attorney General) v. Bedford invalidated the three harmful provisions of the Criminal Code that govern sex work. The Supreme Court gave Parliament one year to come up with new legislation, and last week, the Federal government initiated a “Public Consultation on Prostitution-Related Offences in Canada” featuring a discussion paper and six consultation questions. We are urging all of you – our members and supporters – to participate in this consultation. As we celebrate International Women’s Day this week, what better time to take action on behalf of human rights for all?
Unfortunately, this consultation allows the government to forego real-life dialogue with sex workers, their families, and other stakeholders who are marginalized by the criminalization of sex work. The wording of the discussion paper and the questions is also skewed towards criminalization, and particularly an approach commonly referred to as the ‘Nordic Model,’ or more specifically, the ‘Swedish Model’ (wherein the purchasing of sex and other sex work-related activities is a criminal offense). The Legal Network’s brief details the many problems with this legal framework, outlining research that shows the Swedish approach continues to jeopardize sex workers’ health and safety and reproduces many of the same harms that the Supreme Court found to be unconstitutional.
Nevertheless, while the government’s means of consultation is problematic, it is extremely important that we all engage in this conversation and show support for the human rights of sex workers. This is your chance to be heard.
The public consultation runs until March 17th and is available in both English and French. You can also submit your comments directly to [email protected]. Please take a few moments to fill out the questions. Included below are the responses the Legal Network submitted. Please feel free to use these as inspiration to formulate your own. Other sex work organizations and their allies (POWER, Maggie’s, Pivot and the Gender and Sexual Health Initiative) have also developed responses which may help guide your feedback. Submit only one response. More than one response from the same person may be discarded. If you are re-submitting because you want to elaborate or clarify your response, make sure you indicate this in the last box. Once you have submitted your response, please send a copy to the Legal Network at [email protected]. We are helping to collect responses from supporters of sex workers’ human rights.
Please share this call to action with other supporters of sex workers’ rights and encourage them to submit their own responses. Please also consider sharing them with your federal Member of Parliament – you can find out who your MP is on the Parliamentary website.
Thank you for your continued support for human rights.
1. Do you think that purchasing sexual services from an adult should be a criminal offence? Should there be any exceptions? Please explain.
Without exception, the purchase of sexual services from an adult should not be a criminal offence. As a human rights organization, we do not support a law that has been demonstrated to violate sex workers’ human rights, including their constitutional rights to life, liberty and security of the person.
Evidence shows that criminalizing the purchase of sexual services from an adult is harmful to sex workers and communities. The harms that result from this type of law include:
- Increased risks and rates of violence against sex workers;
- Decreased ability to negotiate safer sex practices;
- Less time for sex workers to screen clients and assess risk;
- Safety networks among sex workers are threatened;
- Aggressive policing that impacts sex workers as well as clients;
- Further marginalization and isolation of sex workers;
- Clients are reluctant to report violence they may witness against sex workers;
- Clients are less likely to provide information to a sex worker before a date, which sex workers use to screen for safety; and
- Sex work is driven underground, depriving sex workers of access to police, health services, social programs and benefits.
Criminalizing the purchase of sexual services from an adult replicates the very harms that sex workers experienced under the laws struck down by the Supreme Court ruling in Bedford. Therefore, it would be both unconstitutional and would undo the progress made by the Supreme Court decision.
Criminalizing the purchase of sex has also had little impact on how often sex work occurs. While street-based sex work decreased in Sweden soon after a law criminalizing the purchase of sex was passed, it is widely understood that that sex workers who could move indoors chose to do so at that time, thus decreasing the visibility of the sex industry. Since this initial decrease, street-based sex work has stabilized and remains constant.
2. Do you think that selling sexual services by an adult should be a criminal offence? Should there be any exceptions? Please explain.
No, the selling of sexual services by an adult should not be a criminal offence, with no exception. As a human rights organization, we support the right of adults to assess the livelihood opportunities available to them and choose to do sex work – or not – as well as sex workers’ right to safe and decent living and working conditions.
Adults who sell sex should never be threatened with criminal charges. Prohibiting the sale of sexual services by an adult drives sex workers underground, jeopardizing their safety and access to health, education and housing. It also renders working and living conditions unsafe for sex workers, which violates sex workers’ rights to health and safety. Sex workers who are hardest hit are those who are already marginalized (i.e., street, Indigenous, racialized and migrant sex workers). Criminalizing the sale of sex by an adult also leads to aggressive policing, which makes it difficult for sex workers to access protection when they need it. The risk of arrest and of having a criminal record can also make it difficult for sex workers to transition to other forms of work, if and when they choose. In addition, forced rehabilitation programs that often accompany criminal sanctions are coercive and do not help to address sex workers’ many needs.
3. If you support allowing the sale or purchase of sexual services, what limitations should there be, if any, on where or how this can be conducted? Please explain.
There should be no criminal laws that target prostitution itself. In all jurisdictions where sex work is criminalized, sex workers have been subject to the very harms that the Supreme Court found to be unconstitutional violations of their rights to life, liberty and security of the person. Canada should use the existing sections of the Criminal Code that are meant to address violence and abuse of all people (e.g., prohibiting assault, harassment and threatening) to protect sex workers.
As is the case in New Zealand, non-criminal laws that address labour conditions and municipal regulation should be developed in consultation with sex workers. These regulations should respect and protect sex workers’ human and labour rights.
4. Do you think that it should be a criminal offence for a person to benefit economically from the prostitution of an adult? Should there be any exceptions? Please explain.
No, benefitting economically from sex work should not be a criminal offence. Sex work is work and sex workers hire, work for, and work with third parties of all kinds (e.g., security, drivers, accountants, receptionist, owners, industry colleagues and family members) and provide compensation for these services. Third parties involved in sex work can play an important role in assisting sex workers with aspects of their work and can significantly increase safety. As the Supreme Court recognized in Bedford, prohibiting third parties in sex work criminalizes much-needed working and personal relationships.
Criminalizing those who benefit economically from the prostitution of an adult also limits the capacity for sex workers to work together for safety. These offences violate sex workers’ security and safety by hindering sex workers’ ability to access services if they are in circumstances of exploitation.
5. Are there any other comments you wish to offer to inform the Government’s response to the Bedford decision?
We applaud the Supreme Court of Canada’s decision in Bedford, recognizing the egregious impact of the criminal law on sex workers’ health, safety and security. While the decision recognizes that Parliament has the power to create laws that limit public nuisance, it cannot do this at the expense of the health, safety and lives of sex workers. Significantly, the Court identified the unconstitutional harms that sex workers suffered as a result of the three criminal offences that were challenged in that case (e.g., inability to work from a secure indoor location; inability to hire, work with or for third parties who can promote sex workers’ safety; and inability to screen clients for safety, displacement to isolated areas, thus resulting in diminished control over working conditions, etc.). The decision thus provided guidance to Parliament should it contemplate new laws that might reproduce those very harms.
The Government should introduce a “made-in-Canada New Zealand model” that protects, respects and fulfills sex workers’ human and labour rights and is developed in meaningful consultation with sex workers. The model of decriminalization employed in New Zealand, as mentioned in the discussion paper above, offers a measure of protection for sex workers by legitimizing their work as labour and offering protections through occupational health and safety standards. Evidence shows that where sex work is decriminalized, sex workers are able to access accurate, timely and non-judgmental health and social services.
We wish to underscore that adult sex work is not trafficking. Trafficking is a human rights violation. Sex workers can play a unique role in identifying victims of trafficking for sexual exploitation, and are extremely knowledgeable about the contexts and issues at stake. They can be and are allies in the fight against trafficking.
Anti-trafficking initiatives that refuse to recognize sex workers’ agency and stigmatize and criminalize sex work miss this opportunity by creating an adversarial relationship with sex workers.
We support the right of sex workers to safe and decent conditions of work, without any form of criminalization, and demand effective measures against all forms of trafficking that do not infringe the human rights of those engaged in consensual adult sex work – clients and sex workers alike.
6. Are you writing on behalf of an organization? If so, please identify the organization and your title or role:
The Canadian HIV/AIDS Legal Network promotes the human rights of people living with and vulnerable to HIV and AIDS, in Canada and internationally, through research and analysis, advocacy and litigation, public education and community mobilization. We intervened before the Ontario Court of Appeal and the Supreme Court of Canada in the Bedford decision to draw attention to the impact of the challenged laws on sex workers’ health and human rights under the Charter and international human rights law.