In 2014, following the Supreme Court of Canada’s Bedford decision, the federal government adopted Bill C-36, The Protection of Communities and Exploited Persons Act (“PCEPA”), continuing the criminalization and stigmatization of sex workers.
Read Pivot’s 2016 report on PCEPA.
PCEPA required the federal government to review this new suite of ‘prostitution’ laws five years after the passage of the bill. Thus, the review should have started in 2019 but it was not until February 2022 that the hearings actually began. After years of radio silence about the review process (despite repeated requests from Pivot and others), the review started abruptly with scant few weeks’ notice.
Pivot co-wrote submissions with PACE and presented to the Committee on March 1, 2022.
The Standing Committee’s Review
The legislature’s Standing Committee on Justice and Human Rights held eight meetings during February and March 2022, where they heard from a total of 48 witnesses. They also received 72 briefs from interested parties.
Much like the hearings on Bill C-36 before it became law, witnesses and briefs were sharply divided between those who spoke or wrote in favour of the PCEPA, and those who were against it. The rights and safety of sex workers was not centred in the process or the proceedings. One issue that marred the proceedings were the number of individuals presenting information about human trafficking when Canada’s human trafficking laws were not at issue during this consultation, only the sex work laws. This is the result of years of conflation of sex work with human trafficking.
Despite the limited time and structural challenges presented by the process, many sex workers; by, with, and for sex work organizations; and sex work allies and scholars testified to the harms of PCEPA. The hearings were challenging spaces in which to appear. Witnesses appeared by video conference and often pro sex work witnesses were speaking at the same meeting as anti sex work witnesses. In addition, each witness was only provided five minutes to make an opening statement following which they were asked questions by committee members.
The Committee’s report
Following the hearings, the Committee released a report with recommendations, entitled Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Persons Act. The report was adopted by the Committee on June 17 and presented to the House on June 22. It requests a response from the federal government.
The report is well worth reading as it does a good job of summarizing the testimony from witnesses at the hearings. Unfortunately, both of the conflicting perspectives on sex work – that sex work is violence against women and is human trafficking, versus a human rights-based understanding that sex work is work – were included in the report, meaning that erroneous information about the sex industry was elevated to “fact” status.
While the report has some positive recommendations, ultimately it does not go far enough or demand immediate action.
The report contains a number of important recommendations that support the health, safety and human rights of sex workers. The most striking of the recommendations concern amending PCEPA to remove several laws which have harmful effects on sex workers. Recommendation 3 suggests removing sections 213 and 286.4 of the Criminal Code.
- Section 213 directly targets sex workers for enforcement action if they are stopping or impeding traffic or working near a schoolground, playground or daycare centre. This law applies only to street-based sex workers and causes them to move to more darkly lit, less populated areas in order to avoid police detection. It can also push sex workers to rush negotiations with clients in order to get off the street quickly.
- Section 286.4 prohibits advertising the sexual services of another person. This makes it more difficult for sex workers to advertise which, in turn, affects their ability to earn a living.
The review also recommends changes to immigration law. Recommendation 10 urges the government to “table legislation to repeal sections 183 (1)(b.1). 196.1(a). 200(3)(g.1) and 203(2)(a) of the Immigration and Refugee Protection Regulations, which unfairly put migrant sex workers at elevated risk of violence and danger by making them unable to report these incidents without fear of deportation.” These current laws forbid migrant workers from legally working in the sex industry.
Some recommendations addressed financial support for sex workers. Recommendation 15 urges the Government to “invest in and support programs … to address the root causes for entering sex work to make entry into the industry a real choice and to protect the vulnerable.” Sex workers have been saying for years that there are a number of push and pull factors that cause people to engage in sex work and that increasing choice for marginalized people would mean fewer people engaging in sex work as a last resort. Recommendation 16 asks the Government for more funding for organizations providing services to sex workers, “particularly those operated by sex workers themselves.” By, with, and for organizations continue to struggle to find funding so this is a welcome recommendation.
These few positive recommendations are not good enough
Despite these important recommendations, the rest of the suite of laws under the PCEPA are left to stand. This means that sex work will continue to be criminalized in Canada and sex workers will still be working in an environment that leaves them more vulnerable to violence and exploitation due to criminalization.
In addition, these positive recommendations are undercut by Recommendation 1 which states that prior to any amendments being made to PCEPA, extensive consultation must be undertaken and Recommendation 12, which calls for a gender-based analysis. This means that repealing these provisions will not happen until the House has responded to this report and extensive consultations have taken place. But who knows when those consultations will occur, if ever? After all, the PCEPA review started three years late which clearly shows that sex workers are not a government priority. However, Recommendation 2 may add some urgency to the process as it recommends that the government acknowledge that “in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.” This is an extraordinary admission that these laws cause harm to sex workers.
Despite acknowledging within the report that “trafficking and child exploitation are not the focus of the current review of the Criminal Code” there were still some recommendations on these topics including Recommendation 7 which suggests that the government introduce legislative changes to the Criminal Code on human trafficking and exploitation before they could consider the decriminalization of sex work. In total, there were four recommendations that addressed trafficking and exploitation directly – further evidence that government policy-makers continue to conflate trafficking with sex work.
Recommendation 14 is also concerning. It recommends that prior to any legislative changes about the sale of sexual services, adequate services and supports be available for sex workers’ health and safety. Selling sexual services has never been illegal in Canada and this recommendation raises the concern that the government may be contemplating such a change in the future.
Finally, future governments are not required to act on these recommendations because they are not binding.
The next hurdle is to wait for the Government’s response to this report, which won’t happen until fall 2022 when the House returns from their summer break. We can only hope that this is not another report with recommendations that wind up gathering dust on a shelf.
Sex workers certainly didn’t achieve their goal of decriminalization through this review process but the repeal of certain Criminal Code provisions as well as some Immigration and Refugee Protection Regulations is a foot in the door if these changes actually do occur. We continue to fight alongside sex workers in the hopes that one day, sex workers will be able to open that door and walk through to a fully decriminalized future.
You can read more about sex workers’ analysis of this report from the Canadian Alliance for Sex Work Law Reform, an alliance of 25 sex worker-led organizations across Canada.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.