I will never forget December 20, 2013 and the walk through the blustery Ottawa streets to the Supreme Court of Canada to hear the outcome of Bedford v. Canada. When I arrived at the courthouse and heard the news that the Court had struck down three of Canada’s most harmful prostitution laws, it became clear that decades of courageous and committed efforts of the sex workers’ rights movement had been rewarded by this incredible victory.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.
After the judgment was released, there was a media frenzy in the foyer of the courthouse. Journalists were focused on the same question that Canadians everywhere were asking – what’s next? More specifically, does the criminal law have a role to play in regulating adult sex work?
Anyone who is thinking about this issue these days is contemplating that question. You have probably read about the law in Sweden and Norway, which criminalizes the purchase of sex (the clients) and claims to not criminalize or punish sex workers. The federal government is contemplating new criminal laws as I write this blog, and is looking closely at this model as a possibility for Canada.
So, with this in mind, Pivot wanted to contribute two things to the debate – evidence and sex workers’ voices – because, to us, these are the most important considerations as we develop a legal framework for Canada. We joined forces with the brilliant public health researchers over at the Gender and Sexual Health Initiative (GSHI) to collaborate on a project that would look at the experience of Vancouver sex workers. The Vancouver experience is very instructive because the VPD have a policy that directs enforcement away from targeting sex workers towards targeting clients. So, in many ways and despite strong opposition to this approach from local sex worker organizations, Vancouver is already experimenting with a Swedish approach to enforcement of the existing laws.
GSHI began by conducting interviews with street-based sex workers who work in the Downtown Eastside and Kingsway areas of Vancouver. The GSHI report was published in the prestigious journal, BMJ Open, and here is what it says:
• Law enforcement targeted at clients does not make sex work go away.
• Sex workers do not want their clients arrested for trying to purchase sexual services. They do want their clients arrested when they are violent, abusive or exploitive.
• When police target clients of sex workers, sex workers experience a range of serious harms to their health and safety including displacement to dangerous and isolated areas of the city, lack of time to negotiate and screen clients and lack of access to police protection.
Pivot’s legal team then took this evidence, as well as evidence from Sweden and Norway, and conducted a constitutional analysis. We asked whether a law that prohibits the purchase of sex, if enacted in Canada, would violate sex workers’ right to security of the person, as protected by the Charter of Rights and Freedoms.
The short answer is – yes. There is a strong case that this approach would violate section 7 of the Charter, which protects security of the person. Given the robust evidence that such a law creates the same dangerous conditions for sex workers that the Supreme Court of Canada said were created by the existing laws, and given that such a law would be both overreaching in its scope and create risks for sex workers rather than protect them, it is our view that it would not stand up to constitutional scrutiny and would be struck down if challenged.
I recommend you take a minute to read the narratives of sex workers that are quoted in our new report, “My Work Should Not Cost Me My Life: The Case Against Criminalizing the Purchase of Sex In Canada” and in the article that was produced by our friends at GSHI, which was published in BMJ Open. We have given these reports to government and will do our best to educate the general public in the hope that the central message of the report will be clear: enacting a new law that targets clients will recreate the harmful conditions that have been endured by sex workers in the streets of the Downtown Eastside. We must learn from the mistakes of the past and do everything we can to ensure that sex workers’ lives are no longer lost or harmed by preventable violence.