A Big Victory for Sex Workers

Sex workers, and those who work with them, had a big victory in an Ontario court on February 21, 2020. The case— involving Hamad Anwar and Tiffany Harvey, owners of an escort agency— resulted in three prostitution-related laws being found unconstitutional. This was the first challenge to the Protection of Communities and Exploited Persons Act (PCEPA)— the scheme of prostitution laws and Criminal Code offences that were introduced under Stephen Harper’s government in 2014.

Read the full decision here 

In this case, the plaintiffs were charged under the Criminal Code with advertising (s. 286.4), procuring (s. 286.3(1)), and material benefit offences (s. 286.2(1)). The anti-advertising law was ruled unconstitutional for violating the right to freedom of expression and the procuring sexual services and receiving a material benefit laws were both ruled to be a violation of the right to security of the person. The government failed to justify these violations under section 1 of the Charter, which allows limits on constitutional rights only if those limits are “demonstrably justified in a free and democratic society."

The advertising law was ruled unconstitutional for violating the right to freedom of expression and the procuring and material benefit laws were ruled to be a violation of the right to security of the person.

Sex workers have long argued that prostitution-related laws make their work less safe by causing them to abandon critical safety-enhancing activities in order to evade the law. This case recognizes some of the harms of the PCEPA.

Read more about the harms of the PCEPA here or click the image below

What Did the Decision Say About Increasing Sex Workers' Safety?

In his decision, the judge summarized the ways in which sex workers could increase their safety if they were not prevented from doing so by the law:

[88] … I make the following findings:

1. Sex workers, particularly those who work on the street, are at a high risk of being the victims of physical violence;
2. the risk that a sex worker will experience violence can be reduced in the following ways:

a) working indoors is safer than working on the streets;
b) working in close proximity to others, including paid security staff, can increase safety;
c) taking the time to screen clients for intoxication or propensity to violence can increase safety;
d) having a regular clientele can increase safety;
e) when a sex worker’s client is aware that the sexual acts will occur in a location that is predetermined, known to others, or monitored in some way, safety can be increased;
f) the use of drivers, receptionists and bodyguards can increase safety; and
g) indoor safeguards including closed-circuit television monitoring, call buttons, audio room monitoring, and financial negotiations done in advance can increase safety.

He also found that “Indigenous women are over-represented, particularly in street prostitution in Canada. In addition, there is insufficient evidence to support the proposition that the Nordic Model of legislation reduces the existence of, or demand for, prostitution. I also find that the stigmatization of sex work has significant negative consequences to the physical, psychological and emotional health of sex workers. There is no satisfactory evidence to establish that the passage of the PCEPA has encouraged sex workers to report incidents of violence to police” (para. 89).

What Will Happen Next?

The charges against Anwar and Harvey have been stayed and the decision will likely be appealed by the Crown who argued that the laws are constitutional because they balance the aim of abolishing sex work against the need to remove barriers preventing workers taking steps to protect themselves.

Photo Credit: Pivot Legal Society | Sex workers' rights advocates gather outside Supreme Court of Canada during historic Canada v. Bedford case | 2013

This case may now follow a similar trajectory to the historic Bedford case that resulted in the previous scheme of prostitution laws being struck down as unconstitutional. Following the lower court decision in that case, an appeal was heard in the Ontario Court of Appeal and finally at the Supreme Court of Canada (SCC). Decisions in the lower court, such as in this case, are not binding in other cases or in other provinces, but judges will likely reference the decision in similar cases until the case is appealed.

Decisions in the lower court, such as in this case, are not binding in other cases or in other provinces, but judges will likely reference the decision in similar cases until the case is appealed.

Anti-sex work campaigners have already called this decision a victory for pimps. However, the expert evidence heard in the case clearly showed that the services Anwar and Harvey provided increased safety for the sex workers who were employed there. The case found that providing services to sex workers is not inherently exploitative, and in fact decreases violence. In this case, the lives of a number of sex workers were negatively impacted by their place of work being shuttered.

Canada's Sex Work Laws

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11 July 2019

2:00 AM. The phone rang, abruptly wakening me. It was the hotel night clerk calling to tell me that members of the Montreal Police Service were downstairs and wanting to search my room. This made no sense to me. When I asked why, I was told there was a report of a missing youth being held in the hotel. Knowing I couldn’t refuse without negative consequences, I reluctantly agreed. More than 7 minutes later, two officers knocked at my door. The officers, both about 6’4”, were imposing men. They wore uniforms and had guns. Stunned by the situation, irritation setting in, I asked if I could speak to a female police officer. The officers laughed. “Do you have an underaged girl in your room,” they persisted. I said no but, resigned to the likelihood that they would not believe me, I responded with “you’d better take a look.” Entering only three steps, they shone a flashlight down the short hall to the bedroom. No searching the closet to their left, bathroom to right, or balcony at the far end of the room, as one would expect in response to concerns about forcible confinement, kidnapping, or trafficking. Within a minute, they apologized for the inconvenience and left. 

Now angry by the intrusion and not able to get back to sleep, I went down to the hotel reception. The night clerk – a nice guy –  conveyed to me that the officers told him that they had a tip about youth being held at the hotel. The police specified that they wanted entry to my room – only to my room. Why only my room? Shrugging sympathetically, he responded, “You’ll have to talk to the manager in the morning.”

This is what happened to one of us – Kerry Porth, sex worker rights activist, educator, and scholar. Along with the other one of us – Genevieve Fuji Johnson, professor of political science at Simon Fraser University – Kerry was in Montreal to attend the 4^th biennial International Conference of Public Policy. The day before, the presentation of our paper “Drugs and Sex: The Boundaries of Harm Reduction,” was well received by a small but interested audience. Afterwards, we met over coffee and croissants with members of our McGill-based research team to discuss our Canadian Institutes of Health Research collaboration, including plans for more research, conferences, and publications. It was a productive couple of days, further developing our work together and consolidating research partnerships with other academics and activists.

We have enjoyed a fruitful activist-academic relationship for about 7 years, producing a number of academic papers on prostitution policy and sex work governance. Sex work is controversial, even as a research area. We have faced our share of stigmatic remarks from peer reviewers of our writings and attendees at our presentations as we have worked to mainstream an evidence-based discussion about the harms of criminalizing prostitution and of conflating sex work with sex trafficking, within political science and public policy research-circles. Never did we think that our work would attract the attention of law enforcement in what was essentially a raid on Kerry’s hotel room in the dead of night.

(Photo Credit: Kerry Porth | Kerry Porth (left) and Genevieve Fuji Johnson (right) in Montreal | June 26, 2019) 

No one disputes that human trafficking of any kind is a serious concern. However, often concerns about sex trafficking belie a powerful moralism that resists evidence and logic. This moralism feeds certain anti-trafficking campaigns that are more harmful than helpful, especially when those campaigns involve harnessing the surveillance powers of an archipelago of hotels, taxi companies, and ride-sharing apps.

Citizen Surveillance and Trafficking “Indicators”

In May 2019, the Montreal Police Service (SPVM) launched RADAR, an anti-trafficking program designed to enlist hotel staff and taxi drivers in identifying suspicious activity. For this program, the SPVM has partnered with police services in Laval and Longueuil, as well as with the Association des hôtels du Grand Montréal, the Montreal taxi bureau, Sun Youth, and the Canadian Resource Centre for Victims of Crime. Hotel staff and taxi drivers are encouraged to be especially vigilant during major sporting events.

RADAR is similar to initiatives implemented by hotels across North America, including the Marriott, Hilton, Hyatt, and Wyndham. For several years, industry associations such as the Ontario Restaurant Hotel and Motel Association and the American Hotel and Lodging Association have been partnering with anti-trafficking organizations like Polaris and ECPAT-USA, as well as with police departments. These initiatives include providing hotel employees with lists of indicators of trafficking that include the following: The guests having multiple computers and phones, large amounts of cash, and lots of alcohol, condoms, lube, and lingerie; refusing cleaning services; leaving minors in the room; infrequently leaving the room; frequently using the “Do not Disturb” sign;  wearing provocative clothing and shoes; taking a lot of toiletries; asking for more towels; staying for long periods with few possessions; and renting more than one room. Some lists also include wearing large hats and sunglasses and children’s items in the room as possible indicators. Ride sharing apps and commercial airlines are also being enlisted in such anti-trafficking campaigns.

A serious issue with these indicators is that, like claims linking an increase in trafficking to major sports events, they are not based on evidence (see What’s the Cost of a Rumour? and SWAN Vancouver Toolkit). Another, perhaps more obvious, problem is that these indicator lists capture the behaviour of many people travelling for any number of reasons. When coupled with the post-911 dictum, “if you see something, say something,” these indicators have the potential of creating sleeper cells of hypervigilant anti-trafficking crusaders (see New York Times article and Washington Post article). Through these amateur agents, the state justifies its creep deeper into our private lives, and the consequences are far-reaching.

We had checked into to our Crescent Street hotel in downtown Montreal a few nights before the raid on Kerry’s room. Genevieve paid for the two rooms for 4 nights, the duration of the conference, on her credit card since she was covering the expenses from her CIHR grant on harm reduction; she did the talking with the hotel clerk while Kerry stood by. We were fatigued from the day’s travel from Vancouver, and that probably showed. That night, and the following morning before our presentation, we stayed close to the hotel, often in our respective rooms, in order to prepare. We had a number of books and articles relating to prostitution in our rooms as well as reports from advocacy and support organizations for sex workers. In Kerry’s room, she had her faithful “Sheepy” – a cute stuffed animal – perched on her pillow for company.

Were any of these activities and items the basis for the anonymous tip to the SPVM?

Or was the tip valid, perhaps from a “would-have-been” client who may have understood what he had unexpectedly walked into and decided to call the cops. Or perhaps it was from a sex worker with first-hand knowledge of a coercive situation taking place in the hotel. Perhaps there was, and still is, a victim of sexual exploitation in the hotel who wants to leave the trade and wants support in doing so. Perhaps the police got the wrong room.

We believe that the most likely explanation is that hotel staff with regular access to Kerry’s room were triggered by the research materials related to sex work on her desk (and perhaps also by little Sheepy). The Montreal Grand Prix had just finished and the Jazz Fest was soon to begin. Staff may have been extra vigilant and called the police just in case. The police responded. But, did they take the sex trafficking tip seriously? Or did they view it as an opportunity to harass a sex worker? Again, at 2:00 AM, two large police officers knocked on Kerry’s room door to ask her about a missing youth but they didn’t actually search her room. When Kerry followed up by phone from Vancouver with the SPVM a week later, she was told there was no record whatsoever of the visit.

(Photo Credit: Kerry Porth | Sheepy the stuffed lamb sits atop various research materials related to sex work | June 26, 2019) 

Anti-Trafficking Campaigns are Harming Sex Workers and Victims of Sex Trafficking

There is growing evidence of the far-reaching harms of anti-trafficking campaigns implemented by the police, including those in partnership with the hospitality industry. As Elizabeth Nolan Brown writes, “carceral hospitality” has “largely wound up as law-enforcement-driven attacks on sex workers and their clients, on immigrants, and on other members of marginalized communities. Along the way, victims of actual trafficking are often swept up in the arrests and incarceration”. If they are non-citizens, this sweep can result in deportation.

Indeed, these programs may make it more difficult for real victims of both sexual exploitation and sex trafficking to come forward, seek the help they want, and receive that help. Those who have power over them may find more ways of keeping them hidden from well-publicized efforts to detect them. Additionally, by funding these programs, valuable resources are diverted from addressing deeper causes of trafficking and, im/migrants who are either exploited or trafficked may fear incarceration or deportation.

They also harm sex workers. Captured by the excessively broad net of initiatives are consenting adults engaging in transactional sex. These programs make sex workers reluctant to carry condoms, more mistrustful of law enforcement, and less likely to “seek help from law enforcement even if they are experiencing violence, abuse, harassment or exploitation”.

Moreover, these initiatives threaten the rights and freedoms of citizens – especially those of us who are racialized. Threats include those to mobility rights, personal security rights, and freedom of association. In November 2017, a twenty-something Asian American was detained en route home from vacationing in Mexico on the suspicion that she was a victim of trafficking. There have been other such cases as well (see this and this). We also believe that Kerry’s visit from the police would have been far different had she been Black or Indigenous instead of a middle-aged white woman. As the raid on Kerry’s room suggests, these initiatives may also pose threats to academic freedom. At the very least, the incident has caused us to think more carefully about hiding from sight any research materials we may have with us when we travel.

Finally, they also threaten the very concept of citizenship. These types of anti-trafficking initiatives represent a shift from an ideal of citizenship in which members of a political community have a responsibility to be critical of the state and to keep a vigilant eye on its exercise of power. The ideal citizen underlying programs such as RADAR is one in which they become an agent of the state blindly implementing its agenda. 

How Can We Really End Human Trafficking?

We are not saying that trafficking doesn’t take place. It does in multiple sectors, including agriculture, manufacturing, and mining. But, the moral panic around sex trafficking has fueled approaches to addressing the problem that are wildly overreaching, causing harms to victims of sexual exploitation and coercion, to sex workers, to the general population, and to the social production of knowledge.

They are costly too. The Canadian National Action Plan to Combat Human Trafficking 2012 to 2016 cost $25 million. Incidentally, only 2% or $500,000 of this was to go to assist victims. As a part of 2014 changes to prostitution provisions in the Criminal Code, an additional $9.53 million was made available to law enforcement to address trafficking and exploitation in the sex industry.

We have to ask: Are such anti-trafficking programs a good idea? Have they been effective in combatting trafficking? Have they actually resulted in any convictions? Researchers Hayli Millar and Tamara O’Doherty report that, from 2006 to 2018 only 88 cases were prosecuted of the 937 charged persons in Canada, and, of these, less than 50% resulted in conviction (forthcoming 2019).

Given the harms, the costs, and the limited benefits, RADAR-esq initiatives need to be abandoned. If we really want to combat sexual exploitation and trafficking, a critical first step is public education about the differences among sexual exploitation, sex trafficking, and sex work (see Living in Community’s Sex Work 101). People engage in sex work for a wide range of reasons, for some it may include a lack of other employment options. Sometimes sex workers will travel across jurisdictions in order to work. Sex work occurring indoors – in condos or hotel rooms – is safer than that occurring on the streets (see Canada (Attorney General) v. Beford, Lebovitch, and Scott). None of these facts necessarily reduce sex work to sex exploitation or trafficking.

Anti-trafficking policies and programs need to be directly informed by sex workers, particularly those who experience multiple forms of overlapping oppressions, and their organizations. It is essential to center the voices of Indigenous sex workers in the development of these polices and programs. As Elene Lam and Annalee Lepp argue, we also need to radically center “the voices of Asian and migrant sex workers” and develop peer-based approaches to seriously addressing these forms of violence. Beyond destigmatizing sex workers, another crucial step in combatting sexual exploitation and trafficking is to decriminalize adult prostitution. Once decriminalized, prostitution can be governed by the same types of labour laws in other areas, and sex workers can receive the same protections as workers in other areas. Affordable housing and accessible education are also essential in any meaningful plan to combat sexual exploitation. Ultimately, municipal governments, including police departments need to work hard to gain the trust of sex workers and their advocacy and support organizations who are among the best positioned to identify victims of either sexual exploitation or sex trafficking and to refer them to trusted programs that can enable them to exit the trade should they choose to do so.

Trafficking is a serious crime and a gross violation of basic human rights. To respond to it, we need nothing less than an effective, evidence-based approach. We need this now.

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Last week President Donald Trump signed a bill into law holding websites liable for the content users—literally millions online—post onto their sites. The bill, a combination of the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), means that websites can be prosecuted if they engage in the "promotion or facilitation of prostitution" or "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims."

The stated aim: to crack down on sex trafficking and protect women by targeting platforms that facilitated it. The reality: targeting these websites will increase the risk of violence faced by sex workers by making it harder to screen clients and work in safer indoor locations. In many cases, sex workers will be pushed to the streets to engage clients, where the risk of violence and death is exponentially higher.

Already digital mainstays like Backpage have shut down, robbing thousands of sex workers of income, safety, and livelihood. Since then, the list of casualties has cascaded; and these sites no longer serve as safe spaces where sex workers can screen potential clients and negotiate terms of services.

Canadian sex workers will also feel the impacts of this dangerous, ill-advised change in policy, as many sex workers here relied on Backpage for the safety it afforded. Users posted an average of 1,600 new adult-services ads on Backpage every day according to one analysis, and 60 per cent of Canada’s online adult ads were hosted on the website, reports the Globe and Mail.

READ MORE: Evaluating Canada's Sex Work Laws: The Case for Repeal

One of the benefits Backpage provided was a sense of agency and autonomy for sex workers who were able to stop working for exploitive third parties. Sex workers were able to take control of their work, be their own bosses, and were able to negotiate the range of services they preferred and the rates at which to offer them. There was little or no “overhead” in the conventional sense. But since the closure of Backpage, “there’s been an upswing in pimps sending sex workers messages promising work,” according to local sex work activist Hailey Heartless. This puts sex workers on the losing end of a skewed power dynamic, which leaves them more susceptible to exploitation.

Evidence supporting the relative safety of internet-based sex work compared with outdoor sex work is strong:

• 91.6% had not experienced burglary in the past five years;
• 84.4% had not experienced physical assault in the same period, and only 5% had experienced physical assault in the past 12 months;
• 82.8% had not experienced theft or robbery and less than 5% had encountered this in the past 12 months; and
• 77.8% had not experienced sexual assault in the past five years.

Writer and activist Morgan Page drew a comparison to the elevated threats and harassment faced by Vancouver street-based sex workers in the 1970s after the closure of the Penthouse Nightclub (click tweet below for full thread).

(Photo credit: Peter Kim, Red Umbrella March, 2017)

Fueled by male transgressions and the unrelenting harms issuing from the White House by an oppressive US president, the 2018 Women’s March once again boasted an inspiring show of force last weekend. Millions attended marches across North America, defiantly calling out the injustices, oppression, and patriarchal systems underpinning them.

(Photo credit: Vox, Women’s Marches across the US, 2018)

But what was markedly different this year in many cities was the focus on intersectionality and a recognition of the need to centre the most marginalized voices to truly represent the diversity and inclusion this movement seeks to embrace. In Vancouver, a local trans sex worker, Hailey Heartless, underscored the need to include sex workers and the trans community as integral parts of the women’s movement.

(Photo credit: @PaceSociety; Hailey Heartless at Vancouver Women’s March; January 20, 2018)

We could not agree more, and believe that for feminism to truly embody the spirit of empowerment and liberation it must not only include, but also work to amplify the voices of sex workers and those fighting to make the profession safe.

Feminism requires listening to women and empower them to name their experiences on their own terms. It means respecting their views with regard to the policies and positions that have direct bearing on their health and safety. The majority of sex workers, and research, agrees that decriminalization would improve the health outcomes of those in the profession.

At its core, feminism is about supporting women's choices and control over their bodies. If feminism supports women's reproductive choices, and their choice to have sex (or not) with whoever they choose, an exchange of money should have no bearing on this.

READ MORE: Evaluating Canada's Sex Work Laws: The Case for Repeal

Sex workers are experts at negotiating sexual consent, however, their ability to do so is seriously compromised by criminalization of their work and work places. Criminalization of the purchase of sex has led to rushed transactions on the street, as clients fear detection by law enforcement. This limits the ability of sex workers to properly screen clients and therefore increases their vulnerability to violence or exploitation. Criminalization of advertising and communication has also made negotiating with clients and screening more difficult.

Policy Researcher

For years Pivot Legal Society, Sex Workers United Against Violence and the PACE Society have been fighting for the rights of sex workers. That fight led to intervening in the Bedford case at the Supreme Court of Canada in June of 2013; and on December 20th, 2013 the Supreme Court of Canada released their historic decision.

For Immediate Release

December 21, 2017

Vancouver, BC – After 17 years of dedication to BC’s leading human rights legal advocacy organization, Pivot Legal Society, Katrina Pacey will be stepping down as the organization’s Executive Director in the new year.

“After almost 17 years, it is hard to believe that I am moving on from Pivot Legal Society, an organization that I adore and believe in so deeply,” says Pacey.

I have spent my entire legal career helping to build and shape Pivot, and I am so proud to see what it has become today. Pivot is a principled, courageous, and impactful organization and I am excited to see where its exceptional staff, board of directors, and new leadership will take it in 2018 and beyond.”

Pacey began her career with Pivot in 2001 in her first few months of law school, when Pivot was a fledgling organization created in response to the health and human rights emergency taking place in the Downtown Eastside. Pacey has worked on all of Pivot’s campaigns since that time, but for more than a decade she was lead counsel on Pivot’s sex workers’ rights campaign.