Sex Work and “Human Trafficking” in Canada I: The Ruling

(I had to break this one into four parts, although it is essentially one article.  Part two will follow tomorrow.)

On September 28th, Ontario’s Superior Court of Justice struck down three key laws that are used to criminalize sex work (“prostitution” is not illegal in Canada, but “communicating for the purpose of,” “living off the avails of” and bawdy house laws were).  But although the three women at Sex Professionals of Canada won their case, a 30-day stay was put in place to allow the various parties to take this to the next step, inevitably heading toward the Supreme Court of Canada.  Xtra is reporting that Justice Minister Rob Nicholson has announced his intention to appeal.

SPOC has issued a press release on their website:

“The invalidation of Section 210 of the Criminal Code, which prohibits bawdy houses, will mean that we can ensure our safety by working together indoors. We can now report abuses of anyone in our occupation to the appropriate authorities, without fear of arrest. Ontario sex workers will no longer be vulnerable to eviction or arrest on our business premises.

The invalidation of Section 212 (1j) of the Criminal Code, that prohibits living wholly or in part on the avails of prostitution was developed to protect us from ‘pimps’. In practice, it makes us and our live-in partners, and even elderly parents we support, susceptible to being charged, and serving up to ten years in jail. The invalidation of Section 212 (1j), will allow our families to finally stop fearing arrest. Our employees, such as receptionists, drivers, etc. will no longer fear criminal prosecution. Section 212 (1j) has stigmatized and punished us and denied that our work is a form of gainful employment for too long.

The invalidation of Section 213 (1c) of the Criminal Code prohibited “communication for the purposes of prostitution”, that means soliciting clients in any public place, including the use of cell phones, the Internet, hotel lobbies, bars, and even rooms with an open door or window. We are liable to being arrested for stopping or even attempting in any manner to stop a person or motor vehicle. Subject to the communication law, we are forced to limit our negotiating time with clients, preventing us from having enough time to determine if the client is trustworthy or potentially dangerous.”

[One of the applicants, Terri-Jean Bedford, was previously convicted under bawdy house laws for operating a dungeon, even though no actual sex took place, showing how that statute was stretched by authorities]

Essentially, the court has ruled that by removing the ability to screen clients and negotiate limits, meet them in safe and trusted locations and control their own earnings, these laws made it completely impossible to live and work safely, and in fact fostered an environment and circumstances in which exploitation by many parties — from criminals and dangerous clients to some less ethical law enforcement elements — would be more likely to take place.  This doesn’t solve everything, as lawyer Alan Young points out:

“So what’s happened is that there’s still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That’s not going to change,” Young added. “Here’s what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law.”

Except that depending on where we go from here, I do believe that some of that can change for the positive.

I wasn’t able to address this ruling at the time, but want to give 1) a reasonable overview of the state of sex work and the people who oppose or engage in it, 2) straight(ish) talk about sex work and trans people, and 3) how Canada needs to move forward from this point… and how our Conservative government is instead already moving backward to criminalize sex work in other ways, including twisting the issue of human trafficking in order to target non-trafficked independent sex workers.

Jarrah provides an overview of the situation at Gender Focus, pointing out that there is a diversity of people who engage in sex work that needs to be considered:

“While there clearly are people who choose to be sex workers… there are clearly those who are trafficked into prostitution or forced into it by economic circumstances, sometimes compounded by drug addiction, mental health issues, and/or racism. Poverty can be a form of coercion….”

Which is true, but it should also be kept in mind that the three laws that were struck down weren’t much assistance in addressing actual exploitation, while they negatively affected autonomous people (often severely), and in some ways even made it harder for exploited women to escape the situations they found themselves in.

Until this ruling, the status quo had been to essentially drive some forms of sex work underground.  In practice, driving something underground forces it into the margins where only the most vulnerable / desperate and the most unscrupulous dared to tread.  It also drives away the support resources that a person would really need to escape the worst of it, either by intimidation, defunding and/or isolation of those who dare to support, or by creating an environment where the people one should be able to turn to for protection, information and assistance can no longer be trusted.

But I said some forms.  Sex work not only includes street-level work, but also escorting, stripping and/or lap dancing, professional domination (and submission), some massage enterprises, transient survival sex, the adult entertainment industry and more.  Some of these haven’t been targeted (or much less so, and sometimes they even can’t be targeted) by these laws.

Canada has the legacy of the women of Vancouver’s Downtown Eastside to consider, as well.  Here, criminalization clearly drove sex work underground, broke down any and all communication that could have existed between authorities and sex workers, any and all refuge that women could have found from the dangers, and perpetuated an environment in which girls remained easy prey.  It’s believed that 49 women were murdered over several years.  The authorities repeatedly missed clues, ignored leads and treated sex workers as incapable of providing any useful information:

“… in 1997 Pickton had been charged with attempted murder in connection with the stabbing of a sex worker. The woman survived and testified… that after driving her to the Port Coquitlam farm and having sex with her, Pickton slapped a handcuff on her left hand, and stabbed her in the abdomen. She also had stabbed Pickton. Later both she and Pickton were treated at the same hospital, where staff used a key they found in Pickton’s pocket to remove the handcuffs from the woman’s wrist. The attempted-murder charge against Pickton was stayed on January 27, 1998, because the woman had drug addiction issues and prosecutors believed her too unstable to testify. The clothes and rubber boots Pickton had been wearing that evening were seized by police and left in an RCMP storage locker for more than seven years. Not until 2004 did lab testing show that the DNA of two missing women were on the items seized from Pickton in 1997.”

(To be continued tomorrow)

6 thoughts on “Sex Work and “Human Trafficking” in Canada I: The Ruling”

  1. I guess breaking it up like this has its disadvantages, such as understanding why from this part “human trafficking” is in “quotey marks.” Patience — all will be revealed.

  2. I like that you broke this up into parts…keeps everyone on the edge! Very well written. I admit the laws themselves had been faulty and very discriminatory against women. Unfortunately striking down the ‘living off the avails’ law has robbed police of an important tool to charge pimps and traffickers that cannot be charged under anything else. We need some serious reform when it comes to prostitution laws in Canada, ie. adopting the nordic model of criminalizing johns and decriminalizing those who sell sex. I am assuming your next posts will address that?

    1. It would have been too long as one post. 🙂

      “Living off the avails” might have had its virtues if it were not so completely distorted in application by law enforcement, to charge sex workers themselves, their families, their roommates and people who were genuinely not involved in trafficking. A version of that law more clearly specific to the exploiting of people would be preferable.

      I do talk a bit about the Swedish Model coming up, though I’m more partial to the New Zealand Model.

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