Out with the Old and in with the… Old? The Current Status of Sex Work Laws in Canada

Milica Uzelac

When the Supreme Court of Canada unanimously struck down the country’s anti-prostitution laws in 2013, it was considered a triumph for many sex workers who believed that the laws prevented them from safely conducting their business. Specifically, all three Criminal Code provisions concerning activities related to prostitution were ruled unconstitutional for violating section 7 of the Charter of Rights and Freedoms. As a result, the Conservative government was given a year to either let the laws lapse, or to adopt new legislation. In response, Bill C-36, the Protection of Communities and Exploited Persons Act (PCEPA), was enacted less than a year later, and remains the current legal framework governing sex work in Canada today.

London SlutWalk 2011

This was precisely how the conversation began on March 24, when Emily van der Meulen (Associate Professor in the Department of Criminology at Ryerson University); Mariana Valverde (Professor of Criminology at the University of Toronto); Ava Rose (university student with lived experience working in various areas of the sex sector, and member of the Sex Workers Rights Movement); and Andrea Sterling (Ph.D. student at the University of Toronto, and member of the Canadian Alliance for Sex Work Law Reform and Maggie’s: The Toronto Sex Workers Action Project), joined forces at the University of Toronto for a panel discussion entitled “Sex Work: A Criminological and Feminist Perspective.”

The consensus among panelists was that the new provisions in PCEPA essentially pose the same risks to sex workers as the original Criminal Code provisions. While four provisions are included in the new legislation, some of those represent only slight modifications to the original ones. Although the selling of sexual services remains legal, van der Meulen noted that for the first time in Canadian law, PCEPA explicitly criminalized the purchase of sexual services.

There is a notion that exists in public and academic discourse that if you don’t claim a victim identity then you’re somehow less legitimate and less authentic. However, in reality, there is no one narrative that can account for the varying experiences of sex work.

This legislation is largely based on the Nordic model that originated in Sweden in 1999, in which sex workers are treated as victims, while those purchasing sexual services are viewed as the perpetrators. While some studies have shown that street prostitution and trafficking have declined in Sweden, others argue that sex workers experience a loss of agency and autonomy, and face heightened levels of marginalization and stigma because of their conceptualization as victims.

According to Rose, “there is a notion that exists in public and academic discourse that if you don’t claim a victim identity then you’re somehow less legitimate and less authentic. However, in reality, there is no one narrative that can account for the varying experiences of sex work.”

Amongst many sex workers, the New Zealand model represents an attractive alternative. There, sex work has been decriminalized since 2003, and the sex industry operates under the regulation of employment and public health laws. This has resulted in reduced violence against sex workers and improved employment conditions, among other benefits.

However, if Canada pursued decriminalization, it would have to overcome a much different policy landscape. Compared to Canada, New Zealand is much smaller in size, which made it easier to mobilize a united voice on behalf of sex workers. Further, its central government makes decisions on behalf of the entire country, and has the authority to limit the powers of municipalities attempting to impose regulations on sex work. This is notable given that in the absence of enforceable criminal law, Valverde suggests that municipalities can often become creative in pursuing ‘quasi-criminalization’ by harnessing various zoning and licencing powers to essentially ban sex work.

In Canada, provincial governments add an extra layer that is absent in New Zealand’s system of government. In addition to municipalities that possess extensive regulatory powers, provinces largely have jurisdiction over areas such as public health and consumer protection. As such, Valverde argued that “even if we get a law that decriminalizes sex work and gets rid of the laws we have now, there exists many other provincial and municipal policies that can end up filling the vacuum. In effect, we would likely be left with a whole mosaic of regulatory policies.”

Sterling, an advocate for sex work law reform and sex worker’s rights, recognizes just how difficult it is to get municipal and provincial players to talk about new legislation. Since securing the participation of both levels of government is critical to any future legislation that centers on decriminalization, it was suggested by an audience member that perhaps it would be more worthwhile to lobby provincial governments first, who could then influence municipalities. Valverde mentioned Premier Wynne’s refusal to allow Toronto to pursue highway tolling as an example of provincial influence in municipal affairs. At the same time, her plunging approval rating suggests that Ontario specifically would not be in a position to push for any such legislation for the time being.

By maintaining the status quo, the voices of those who are most affected by this legislation remain largely ignored.

At the federal level, the current Liberal government was fairly outspoken in criticizing the unconstitutionality of PCEPA when it was introduced in 2014, but has failed to undertake any policy alternatives since assuming office in 2015. It would be easy for the government to let the law continue to exist as is, and to follow along global trends led by Nordic countries in the area of sex work. However, by maintaining the status quo, the voices of those who are most affected by this legislation remain largely ignored. Rose insists that this is indicative of a larger trend in society, noting that “criminalization of the purchase of sex goes hand in hand with state and government interests to increase control over migration in the informal sectors of the economy, and to exclude unruly or threatening populations from the nation. This serves to effectively redirect attention away from the structural and economic inequalities inherent in neoliberal capitalism to individualize concerns about sexual violence against women.”

Milica Uzelac is a Master of Public Policy candidate at the School of Public Policy and Governance at the University of Toronto. She holds an Honours Bachelor of Arts from the University of Toronto, where she completed a double major in International Relations and Criminology. Her policy interests include immigration, criminal justice reform, as well as international affairs.

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