Coalition of sex work law reform advocates bring Charter challenge of sex work prohibitions

Lawyer hopes lawsuit is first step toward greater safety, worker protections and benefits

Coalition of sex work law reform advocates bring Charter challenge of sex work prohibitions
Sandra Ka Hon Chu, HIV Legal Network

A coalition of sex worker rights organizations has filed a notice of application, seeking to strike down sex work prohibitions on Charter grounds, as the group says it has grown tired of waiting on the federal Liberal Government to fulfill its promise to repeal a piece of Harper-era legislation.

The lawsuit takes aim at six Criminal Code provisions, which the applicants say violate sex workers’ Charter rights to security, personal autonomy, life, liberty, free expression, free association and equality. Party to the challenge are the Canadian Alliance for Sex Work Law Reform, which is a coalition of 25 Canadian sex worker rights groups; a number of women who have done sex work and one former escort agency operator.

“Over the past seven years, since the Protection of Communities and Exploited Persons Act was passed, we've seen more harms of the law on sex workers,” says Sandra Ka Hon Chu, director of research and advocacy at HIV Legal Network, which is part of the alliance. “Particularly the most marginalized sex workers, many of those who work on the street, migrant sex workers, Indigenous sex workers.”

“These laws need to be struck down, because they're perpetuating great harm and they're not actually achieving their stated objective of protecting sex workers. They are actually doing the opposite.”

In December 2013, the Supreme Court of Canada ruled three Criminal Code provisions related to sex work violated s. 7 of the Charter and were of no force or effect. In Canada (Attorney General) v. Bedford, 2013 SCC 72, the court held this legislation prevented sex workers from taking measures that would increase their safety and could save their lives and gave Parliament one year to draft appropriate remedial legislation, said the applicant’s statement of claim.

The response from the Conservative Government at the time was Bill C-36 The Protection of Communities and Exploited Persons Act, which received Royal Assent in November 2014. Far from remedying the constitutional issues, the statement of claim said the Tory legislation exacerbated the violations to sex workers’ Charter rights.

“One of the biggest lies and sort of PR campaigns that the government at the time sold with the Protection of Communities and Exploited Persons Act was that this new set of laws was under the guise of protecting sex workers,” says Alliance National Coordinator Jenn Clamen. “When in fact, it has as one of its objectives to eliminate sex work. So the new laws that were created just actually introduced new criminalization into the lives of sex workers.”

For the first time in Canadian history, the exchange of sex for compensation was made illegal, says Chu. The Act also made illegal communication for the purpose of selling sexual services in public, the purchase and communication for purchase of sexual services, material benefit from the sale of sexual services and advertising someone else’s sexual services.

Section 286.5 granted immunity for those selling or advertising their own sexual services. But Clamen says, though themselves immune from prosecution, to work and make money in the trade, sex workers are made to be constantly “mitigating criminality.” Criminalization goes far beyond arrest, it affects how sex workers organize their work to avoid detection, which impacts access to social services, legal services, health services and housing, she says.

Back when the Act was passed in 2014, the Liberals, the NDP and the Green Party all vowed to repeal it, says Clamen.

“Liberals have spent the past five years doing absolutely nothing about it. In fact, they have really left sex workers out in the cold, particularly in the context of a pandemic,” says Clamen.

The indirect criminalization means that Black, Indigenous, migrant and trans sex workers, as well as sex workers who uses drugs, are particularly targeted and profiled by police, said the Alliance.

“Criminalizing any part of the sex industry makes it dangerous for sex workers,” Clamen says. “They're functioning within a context of criminality.”

Having the Criminal Code provisions struck down is “the first step,” says Chu. Once that is achieved, sex workers will benefit from the occupational health and safety protections, employment standards legislation and access to employment benefits such as CERB, to which other workers have access, she says.

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