Canada’s Sex Work Laws: Don’t Break What We Worked So Hard to Fix

With the momentous decision from the Supreme Court on December 20, Canada’s highest judicial authority confirmed what sex workers had known for many years: three of the laws restricting our trade were unconstitutional, and were decisively struck down. In their ruling, the Supreme Court of Canada left no doubt that these laws were not only ineffective, but dangerous; the SCC also told Parliament, in no uncertain terms, that watered-down versions of the same laws would not be acceptable replacements.

The court included a one-year stay of proceedings before the existing laws are to come off the books, ostensibly for Parliament to draft new laws. I have already written extensively on the Five Fatal Flaws of the Abolitionist Approach, and why criminalization of the clients is unwise. Further to that point, it is my contention that no new laws are required. The existing provisions of the Criminal Code of Canada are more than adequate to allow law enforcement to target the more harmful circumstances connected to prostitution, while simultaneously allowing consenting adults to do as we choose in the privacy of our own homes.

When it comes to prostitution, there are three aspects of sex work that the public finds most intolerable: the exploitation of children and youth, illegal trafficking in persons against their will, and disruptive displays of sexual solicitation. Each of these aspects are adequately covered by existing Criminal Code provisions, as I will outline below, and it is clear that the existing laws already give law enforcement the tools they need to stop these offenses when and where they occur.

First, the exploitation of children and youth is explicitly covered by Sections 212.2(a) and 212.2(b), which specifically prohibit exploitation, coercion, or the use of violence against those under the age of eighteen. Anyone convicted of exploiting children or youth for the purposes of prostitution is to be imprisoned for anywhere from five to fourteen years (personally, I wouldn’t mind seeing the law strengthened even further, because those who exploit children are truly the scum of the earth). It remains illegal to procure anyone under the age of eighteen into prostitution, and these laws were not affected by the SCC’s decision in any way, shape or form.

Second, the illegal trafficking of persons is already prohibited under Sections 279.01 to 279.03. Penalties for this offence range up to 14 years in many cases, or life imprisonment if aggravating factors such as violent assault or sexual assault also occur. Receiving material benefit from the work of trafficked persons is punishable by up to ten years in prison, and withholding or destroying a trafficked person’s documents is punishable by up to five years in prison. In cases where people are trafficked or coerced for the purposes of sexual exploitation (which happens much less frequently than most people believe) the existing laws are more than adequate; police already have the means to do their job effectively, and stop these offenses when they do occur.

Finally, the third aspect of sex work that the public considers distasteful is loud and disruptive street solicitation, or the prospect of large commercial brothels. It is debatable whether the mere presence of a sex worker or a brothel in a neighborhood is disruptive (I and many others hold that it is not) but in those cases where disruption and undue noise do occur, the laws prohibiting public disturbances can be used instead, as per Section 175.(1). Additionally, municipalities already engage in zoning and space restrictions on other types of businesses, so it’s unlikely that a 10-storey brothel will ever be erected next to a schoolyard; there’s no need to use the Criminal Code to settle what is essentially an issue of municipal regulation. There is considerable debate regarding how cities should regulate public space, but again, the claim that new laws restricting sex work must be added to the Criminal Code to settle issues of zoning and licensing is certainly excessive. It’s the legal equivalent of using a 100-decible sound system to drown out the annoying buzz of a housefly.

There’s a logical fallacy known as cum hoc ergo propter hoc, which is latin for “with this, therefore because of this.” It’s commonly assumed that these ills of society – exploitation of children and youth, unwilling trafficking victims, and loud public displays of solicitation – are directly and causally related to prostitution. They are not. They are often associated with prostitution because they are the most visible, most abhorrent, and most nauseating forms of human behaviour. But it would be a mistake to claim that all prostitution is inherently harmful based on these cases – these are very much the exception, and not at all the rule. Laws already exist to prohibit these behaviours, and to allow law enforcement to do their job. Due to decreased enforcement of laws concerning indoor sex work, Prostitution-related charges have dropped by 90% in Toronto from 2006 to 2011 (the same period that the constitutional challenge was underway) but we have not seen the increase in trafficking or exploitation that many have falsely claimed would result from decriminalization. Creating laws that are overly broad and ineffective will just push sex work back into the shadows, and will continue to make it less safe for all those involved.

Sex work can be safe, clean, and beneficial to those of us who choose it as a career. It can be conducted ethically, honestly, and freely, with the full consent of all participants. It can be done right, in the privacy of our own homes, without exploitation; we just need to ensure that governments do not restrict our right to choose what we do with our own bodies.

We have worked so hard to convince the court that the laws were overly broad and detrimental to our safety, and we have worked just as hard to assure the public that we are not to be feared or loathed. We have come too far to let certain political interests undo the gains we’ve made in the past ten years. We ask the Canadian public to support us and stand by us, and not allow weak-willed, ideologically-driven politicians to destroy what we’ve worked so hard to repair.

5 thoughts on “Canada’s Sex Work Laws: Don’t Break What We Worked So Hard to Fix

  1. Amen! Deliberately confusing the cart for the horse, or the cart for the driver with the cruel whip, is the oldest trick in the ideological holy book.

    In light of Justice Minister Peter MacKay’s musings on CTV’s “Power Play” today, the government seems to have no knowledge of the entirely adequate existing provisions of its own Criminal Code:

    “We’re going to have to produce legislation that will … address the effects of prostitution, the exploitation that goes on and the vulnerability that many in society have as a result of johns and in fact pimps that prey on vulnerable women.”

    Special prostitution legislation? Why oh why, other than to impose narrow-minded conservative morality on supposedly free citizens? I can’t help but wonder (with tongue in cheek): where is the governmental outrage, and its drive to legislate special laws regulating or outlawing (let us say, for example) the construction-industry ? Which, after all, we have known for a very long time is a business rife with organized crime, corruption, human trafficking (the largest case brought to date under Canada’s Human Trafficking Law was in the Canadian Construction Industry), and back-alley intimidation … at the very least!

    Sure, it’s the world’s oldest profession. We’ve always had construction workers — ever since the Sumerians raised the Tower of Babel, anyway. The God of Abraham punished the builders of the Tower for a reason — construction is plainly immoral, and working construction destroys the precious, unique soul that resides at the core of every man. Oh yes, many Construction Workers will admit that it’s a tough job, but then turn right around and claim that it’s rewarding for them to see the fruits of their labours raised in the form of steel and glass, ultimately making their clients’ home-lives happier. And they’ll claim that the money is very good, thus making the hardships of the job acceptable and providing them with a better living than they would otherwise have. Based on their own free choice.

    But we know better.

    They’re lying to themselves, these pathetic, politically-naive victims. They’re stuck in the Dark Ages, and just have not been properly educated in Constructivist Theory.

    Not to mention the poor, destitute, subsistence-level handmen who’ll mend your fence or fix your taps for cash-under-the-table. I bet you know where their money goes, just as soon as they get it.

    The least we can do is arrest homeowners and contractors who dare discuss business on the sidewalks of respectable residential neighbourhoods. And don’t get me started on used shingles blowing all over the neighbours’ lawns. Would you want your young and impressionable children to see a construction worker lugging a hod of bricks up a ladder on a sweltering summer’s day and think, “hey, I’d like to grow up and do that for a living”? I didn’t think so!

    It’s shocking and dehumanizing that some people think they can buy a person’s body like that. And have you seen the statistics for deaths of Construction Workers every year in Canada?? It’s an activity that just can’t be made safe, no matter where it occurs. Stop Human Trafficking Now! Outlaw Construction Workers! And their Clients!

    • Great points WiT, people often forget that trafficking in persons for work that isn’t sexual is considerably more prevalent than those who migrate to work in the sex trade. Thanks for your hilarious comment!

  2. Thanks for this very succinct essay! From my own (US) experience, just to add that nuisance laws are often used in a discriminatory way against sex workers, so that advocacy in that area is also needed.

    • Thank you for your comment Carol, you’re absolutely right. Police have frequently used and misused other Criminal Code provisions against street-based sex workers, and it would be important to make sure they don’t use this as a “legal loophole” so to speak, but apply it in the cases where genuine disruption occurs. As I said, the mere presence of a sex worker doesn’t constitute disruption, but the public is concerned that the SCC decision might leave the streets open to noisy and inappropriate disruption, and I simply identified one tool that police could potentially use to prevent that from happening. Your point that it should not be abused is absolutely valid, and the education of police and the public is paramount. Thanks for chiming in!

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