The sale of sexual services between consenting adults is legal under Canadian law. However, the “bawdy-house” provision (s. 210 & 211), the “procuring” provision (s. 212) and the “communicating” provision (s. 213) make it very difficult to engage in prostitution without breaking the law. The result is that many sex workers face criminal consequences for engaging in what is an otherwise legal activity. This punitive legal system exacerbates the unequal social and economic position of sex workers in Canada.
Rights not rescue
Over the past several years, the public has become increasingly aware of the issue of violence against sex workers. With over sixty women missing from Vancouver’s Downtown Eastside, the trial of William Pickton and the charges against Donald Bakker, there is ample evidence to conclude that sex workers live and work in conditions of extreme violence and danger.
Many of the participants in this project confirmed this conclusion by describing incidents in which they were sexually assaulted, beaten, robbed and held hostage, and somedescribed having narrowly escaped murder attempts. Sex workers are in the best position to describe what it is like to work and live under the current social and legal framework and to recommend the ways in which their circumstances should be improved. In the form of affidavits, this report presents the expert opinions of sex workers and their experiences working within the current legal framework. The affidavits highlight many ways in which Canada’s sex trade laws worsen the already harmful conditions under which sex workers live, add to the stigma of their employment and social position, and support the inference that sex workers are less worthy of value than other members of society.
Given this evidence, it is argued that the laws violate the expression, liberty, security and equality provisions of the Charter of Rights and Freedoms. It is found that these violations cannot be justified in a free and democratic society. This report puts forward the following recommendations for law reform:
- Section 210 of the Criminal Code (the bawdy-house provision) should be struck down in its entirety. By extension, s. 211 (which prohibits the transportation of anyone to a bawdy-house) should consequentially be repealed;
- Section 213 of the Criminal Code (the communicating provision) should be struck down in its entirety; and
- Section 212(1) and (3) of the Criminal Code (the procuring provision) should be struck down, with the exception of the international trafficking prohibitions found in s.212(1)(f) and (g), which are not addressed in this analysis.
Ending the criminalization of the sex work is an essential step toward reducing the harms experienced by sex workers. However, the safety and well-being of sex workers will not be secured through criminal law reform alone. Affiants also proposed a number of important policy changes. They emphasized that sex workers lack access to fundamental benefits and services. Poverty, inadequate housing, violence, poor health, addiction and law enforcement are major areas of concern. There is an urgent need for policy change in each of these areas as part of a comprehensive approach to improving the lives of sex workers and ensuring alternatives for those who wish to leave this occupation. This report is unique in that the evidence and legal arguments are presented not to a court, but to the public and to parliament. The relief sought here is not a judicial remedy,but a strong call for systemic legal change. The affiants call for a new approach to providing choice and safety for all sex workers that recognizes their fundamental Charter rights and prioritizes their opinions and experiences in future law and policy reform.