Sex workers are being harmed and exploited, not protected, under the current laws, a coalition of sex workers and sex worker-led groups will argue Monday at a landmark five-day Superior Court hearing — the first step in what they hope will lead to sex work being fully decriminalized in Canada.
Under the 2014 Protection of Communities and Exploited Persons Act, those who sell sexual services directly are immune from prosecution but it is illegal to purchase sexual services — a distinction intended to discourage and ultimately eliminate sex work. The laws also ban third parties from advertising sex work, benefiting from sexual services and facilitating sex work.
The Attorney General of Canada argues that the law should remain in place because it balances allowing sex workers to take steps to protect themselves without facing criminal sanctions with the need to give police the tools to investigate, intervene and protect vulnerable people from being coerced or manipulated into sex work.
The coalition argues the past seven years have shown sex workers are not, in fact, being protected by the legislation.
Instead, there is a “culture of fear” for clients who need to avoid detection by police and, as a result, sex workers are forced to operate in unsafe locations, with limited communication and with no ability to work together to improve their working conditions without risking being charged with third-party offences, the coalition argues in hundreds of pages of material filed with the court, with support from organizations including Amnesty International Canada, LEAF and the Canadian Civil Liberties Association.
“We fear clients even more because clients do not want to give up vital information, like their name and their number,” said one of the applicants, Monica Forrester, a two-spirit, Black, trans woman who has been doing sex work for more than 30 years.
“The government has failed in their responsibility to protect the health and safety of some of the most marginalized people,” said Jenn Clamen, national co-ordinator of the applicant Canadian Alliance for Sex Work Law Reform which represents 25 sex worker rights groups. “Sex workers want to report violence but they don’t want to be in contact with police because they could lose their livelihoods, sometimes they lose their housing, they lose their children, they could lose ‘straight’ jobs that they have.”
Black, Indigenous and trans sex workers face an even higher risk of violence both from clients and police, Clamen added. This can be in part due to racism or discrimination that prevents them from working typical jobs or in strip clubs or massage parlours — leading them to do more dangerous work with fewer protections, the Black Legal Action Centre argued in a factum filed with the court.
And immigration laws prohibit migrants from being sex workers, a fact that puts them at risk of arrest and deportation and makes them more vulnerable to exploitation.
“The perpetrators know they are not able to seek help,” said Elene Lam, executive director of Butterfly, which provides support for more than 5,000 Asian sex workers across the country.
Clamen says this lawsuit differs from previous constitutional challenges because it does not target just the third-party offences, but the key foundational provision: that purchasing sex is illegal.
Ultimately, the legal challenge is not just about striking down the laws because they violate several Charter rights, including the right to security and right to equality, it is about changing the government’s ideological position that sex work is inherently exploitative, Clamen said. (She notes that the lawsuit is not seeking to change any laws involving minors and that criminal offences like human trafficking would remain in place).
The government is saying “a whole community of people should just cease to exist,” she said. Instead, she said, there needs to be an understanding that sex workers can choose to do sex work, even under difficult circumstances, and the focus needs to be on making working conditions as safe as possible as in any other industry.
“You have thousands of sex workers across the country for decades saying they don’t want their work criminalized and that they are not victims of the work itself but the conditions under which they are forced to labour,” Clamen said.
If the people who want to ban sex work were actually concerned about poverty and violence, they would not be focusing energy on sex work but on solutions to those issues, she said.
The hearing will take place soon after a self-described “incel” teen pleaded guilty to the first-degree murder of a young mother and attempted murder of another woman at a Toronto massage parlour — a brutal attack that the Crown alleges was motivated by the misogynist incel ideology, which encompasses both a hatred of women and a hatred of sex workers.
Clamen is hopeful that there is now a more nuanced public understanding of what sex workers want.
“One of the important messages of this case is that victimizing sex workers through criminalization is actually more dangerous for sex workers,” she said
Landmark hearings on decriminalizing sex work begin Monday | The Star
Under the 2014 Protection of Communities and Exploited Persons Act, those who sell sexual services directly are immune from prosecution but it is illegal to purchase sexual services — a distinction intended to discourage and ultimately eliminate sex work. The laws also ban third parties from advertising sex work, benefiting from sexual services and facilitating sex work.
The Attorney General of Canada argues that the law should remain in place because it balances allowing sex workers to take steps to protect themselves without facing criminal sanctions with the need to give police the tools to investigate, intervene and protect vulnerable people from being coerced or manipulated into sex work.
The coalition argues the past seven years have shown sex workers are not, in fact, being protected by the legislation.
Instead, there is a “culture of fear” for clients who need to avoid detection by police and, as a result, sex workers are forced to operate in unsafe locations, with limited communication and with no ability to work together to improve their working conditions without risking being charged with third-party offences, the coalition argues in hundreds of pages of material filed with the court, with support from organizations including Amnesty International Canada, LEAF and the Canadian Civil Liberties Association.
“We fear clients even more because clients do not want to give up vital information, like their name and their number,” said one of the applicants, Monica Forrester, a two-spirit, Black, trans woman who has been doing sex work for more than 30 years.
“The government has failed in their responsibility to protect the health and safety of some of the most marginalized people,” said Jenn Clamen, national co-ordinator of the applicant Canadian Alliance for Sex Work Law Reform which represents 25 sex worker rights groups. “Sex workers want to report violence but they don’t want to be in contact with police because they could lose their livelihoods, sometimes they lose their housing, they lose their children, they could lose ‘straight’ jobs that they have.”
Black, Indigenous and trans sex workers face an even higher risk of violence both from clients and police, Clamen added. This can be in part due to racism or discrimination that prevents them from working typical jobs or in strip clubs or massage parlours — leading them to do more dangerous work with fewer protections, the Black Legal Action Centre argued in a factum filed with the court.
And immigration laws prohibit migrants from being sex workers, a fact that puts them at risk of arrest and deportation and makes them more vulnerable to exploitation.
“The perpetrators know they are not able to seek help,” said Elene Lam, executive director of Butterfly, which provides support for more than 5,000 Asian sex workers across the country.
Clamen says this lawsuit differs from previous constitutional challenges because it does not target just the third-party offences, but the key foundational provision: that purchasing sex is illegal.
Ultimately, the legal challenge is not just about striking down the laws because they violate several Charter rights, including the right to security and right to equality, it is about changing the government’s ideological position that sex work is inherently exploitative, Clamen said. (She notes that the lawsuit is not seeking to change any laws involving minors and that criminal offences like human trafficking would remain in place).
The government is saying “a whole community of people should just cease to exist,” she said. Instead, she said, there needs to be an understanding that sex workers can choose to do sex work, even under difficult circumstances, and the focus needs to be on making working conditions as safe as possible as in any other industry.
“You have thousands of sex workers across the country for decades saying they don’t want their work criminalized and that they are not victims of the work itself but the conditions under which they are forced to labour,” Clamen said.
If the people who want to ban sex work were actually concerned about poverty and violence, they would not be focusing energy on sex work but on solutions to those issues, she said.
The hearing will take place soon after a self-described “incel” teen pleaded guilty to the first-degree murder of a young mother and attempted murder of another woman at a Toronto massage parlour — a brutal attack that the Crown alleges was motivated by the misogynist incel ideology, which encompasses both a hatred of women and a hatred of sex workers.
Clamen is hopeful that there is now a more nuanced public understanding of what sex workers want.
“One of the important messages of this case is that victimizing sex workers through criminalization is actually more dangerous for sex workers,” she said
Landmark hearings on decriminalizing sex work begin Monday | The Star
