How Harper's new prostitution law violates Canada's Rights and Freedoms
|In Vancouver, Sex Worker Rights Activists brave the weather.|
June 14, 2014. Photo: Philip Lo
We've come a long way since Canada's Criminal Code was first enacted in 1892, which made "procuring women for unlawful carnal connection" a crime. There were already laws prohibiting sexual activity, of course. The Vagrancy Act of 1867 made "the defilement of women under the age of 21" illegal. And "common prostitutes," keepers, and frequenters of houses of ill-fame were liable to arrest.
The federal government introduced "An Act to Amend and Consolidate the Laws Respecting Indians" in 1880, better known as The Indian Act. Brothel keepers were banned from allowing Native women on the premises. In 1884, "tents and wigwams" were included in the bawdy-house provisions, to ensure that Native brothel keepers could be convicted. In 1886, The Indian Act is amended again, to ensure that Native men who frequent such places could also be arrested.
In 1931, The Statute of Westminster, gave Canada the power to enact its own laws. The laws of Great Britain no longer applied, unless enacted by Canadian parliament. It's at this juncture we start to see the influence of Canada's Supreme Court on prostitution laws. In 1939 the Supreme Court of Canada (The King v. Betty Cohen) finds that the habitual use by one woman of her own premises for prostitution is sufficient grounds to convict for the offence of keeping a common bawdy house.
August 10, 1960, Canada enacted "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms." The Bill of Rights declared that, without discrimination, every law in Canada shall not infringe on "any of the rights and freedoms herein recognized and declared." These rights include such fundamental principles as the right to life, liberty and security; equality before the law and protection of the law; and rules for arrest and detainment.
By 1968, The Bill of Rights begins to influence legal reforms. The Supreme Court of Canada (Patterson v. the Queen) rules that isolated instances of prostitution do not make a place a common bawdy house. There must be evidence of habitual use.
In 1972, the Vagrancy Law section of the Criminal Code which was used to arrest a "prostitute or night-walker who ... fails to give a good account of herself" is repealed. Replacing it is a new law that makes it crime to solicit any person in a public place for the purpose of prostitution. In 1978, The Supreme Court (R. v. Hutt) rules that soliciting must be "pressing and persistent."
Charter rights become symbol of Canada's independence
On April 17, 1982, the Constitution Act was signed by Queen Elizabeth II and then Prime Minister Pierre Trudeau, and it replaced the British North America Act passed by Britain in 1867. Canada's Constitution with its own Charter of Rights and Freedoms became the highest law in the country, and Canada gained its full independence from Britain.
|Her Majesty Queen Elizabeth II signs Canada's new |
Charter of Rights and Freedoms into law, April 17, 1982.
Photo: National Archives of Canada (http://canadianheritage.org)
All government services, departments and agencies in Canada - whether federal, provincial, territorial, regional or municipal - must respect the rights and freedoms guaranteed in the Charter of Rights and Freedoms. Laws that are inconsistent with the Charter can be declared unconstitutional and struck down by a court of law.
Life, Freedom and Security
In December 2013, the Supreme Court of Canada (Bedford Decision) struck down all three sections of the Criminal Code that outlawed prostitution, on the grounds that the laws violated sex workers' right to security of the person. In other words, the laws prevented sex workers from employing precautions that would increase their safety on the job.
Chief Justice, Beverly McLaughlin: "by imposing dangerous conditions on prostitution; [the laws] prevent people engaged in a risky - but legal - activity from taking steps to protect themselves from the risk."
Everyone has the right not to have her or his life, freedom, or security taken from her or him -- except in accordance to the principles of fundamental justice.
The Harper government was given one year to enact new laws that addressed the Supreme Court's concerns, at which time the old laws would be repealed.
Commodification of sexual activity causes social harm
November 2014, The Harper government enacted The Protection of Communities and Exploited Persons Act (PCEPA), making new prostitution crimes part of Canada's Criminal Code. Section 286 (Commodification of Sexual Activity) makes it a new crime to pay for sex. And, it's now a crime to live with, or regularly be in the company of sex workers (with exceptions for family and landlords etc.).
In the preamble to the Act, the Harper government attempts to justify these new laws, providing the courts with context and intent. The government "has grave concerns about the exploitation that is inherent in prostitution..." "The Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;" and "it is important to protect human dignity and the equality of all Canadians by discouraging prostitution."
But what about worker health and safety?
When PCEPA was enacted, The Premier of Ontario, Kathleen Wynn, issued a statement saying she had a "grave concern" that the new laws would not make sex workers safer, and she asked her Attorney General to review the law for constitutional validity. But Ontario Attorney General
Madeleine Meilleur and her senior staff concluded the new law answers the Supreme Court's concerns over sex workers' safety and security. On April 1, 2015, Premier Wynn announced that "there's no clear unconstitutionality in the law," while refusing to provide any details. "We will uphold the law," she said, "the importance to you is that it's constitutionally sound."
It wasn't just the Ontario government that had grave concerns about Harper's new criminal laws.
December 2014, the Canadian Public Health Association (CPHA) released its report, Sex Work in Canada: The Public Health Perspective. In the introduction, CPHA states that "stigma surrounding sex work, discrimination against sex workers, and the criminalization of various aspects of sex work make sex workers a hard-to-reach population." The report's top recommendation:
"The establishment of a regulatory framework based on a public health approach would provide an opportunity to regulate sex work as a business. As such, it would be subjected to the roles, responsibilities and legal requirements of those entities, and sex workers would be provided with protection under existing occupational health and safety regulations."
The report's "Public Health Perspective" underlined the importance of sex-worker associations in improving workplace safety: "structural supports such as sex worker unions which improve social capital and access to resources, are effective in fostering a climate of prevention with subsequent reduction in STI and HIV prevalence."
The president of the Canadian Public Employees Union for Ontario, Fred Hahn, also stressed sex-worker health and safety. In his July 9, 2014 National Post editorial, Hahn states: "Sex workers deserve the same protections as all workers, including the right to earn an income without being persecuted, the right to a healthy and safe work environment, and the right to freely associate with other workers... Trade unions must support the health and safety of everyone, especially those working in precarious industries."
Association is a right
Within the baroque complexity of Section 286 there is at least one infringement on sex workers' Charter rights. But, it's a bit complicated.
First, "everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence. [s.286.2(1)]
Second, "evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services [s.286.2(3) Presumption]
In other words, If you live with, or hang out with someone who charges for sexual services, you are guilty under Section 286.2 until you prove that you do not knowingly receive any material benefit.
The law also provides some intricately defined "Exceptions." For example: "legitimate living arrangement;" "result of a legal or moral obligation;" you provide "a service or good" that you offer "on the same terms and conditions, to the general public;" and, lastly, you provide a "service or good" that you "do not offer to the general public" if you "did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good." [s.286.2(4)]
Everyone has the right to gather in peaceful groups, and to associate with whom she or he chooses.
Under s. 286, sex workers are banned from consorting with each other in anyway related to conducting commercial sex. It's a crime to receive any benefit "in the context of a commercial enterprise that offers sexual services for consideration." [ss.286.2(5)(e)] This includes any form of joint sex-business ventures, whether it be employer/employee, or co-operative, or even sex-industry conferences.
Technically, regular social gatherings such as potlucks are prohibited, as the exchange of ideas and advice could be considered "counselling" and "encouraging" the sale of sexual services. Food and beverages are the material benefit!
It is exactly this sort of legal prohibition that the Charter of Rights and Freedoms was designed to protect us from.
Strength in Numbers
September 21, 2012, Supreme Court of Canada ruled that a society could be granted public-interest standing in a constitutional lawsuit (Canada v Sex Workers United Against Violence Society and Sheryl Kiselbach). The society, Sex Workers United Against Violence (SWUAV) was denied standing because a society cannot be charged under the prostitution laws in question.
The ruling explains that no sex workers were willing to bring a court challenge forward because, "They feared loss of privacy and safety and increased violence by clients. Also, their spouses, friends, family members and/or members of their community may not know that they are or were involved in sex work... They have children that they fear will be removed by child protection authorities. Finally, bringing such challenge, they fear, may limit their current or future education or employment opportunities..."
|Sex Workers United Against Violence lead the Red Umbrella March |
for Sex Work Solidarity in Vancouver, 2014. Photo: Philip Lo
The Supreme Court reasoned that SWUAV had the capacity to undertake the lawsuit, "The Society is a well-organized association with considerable expertise with respect to sex workers in the Downtown Eastside, and Ms. Kiselbach, a former sex worker in this neighbourhood, is supported by the resources of the Society. They provide a concrete factual background and represent those most directly affected by the legislation."
The unanimous ruling states that, "one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected."
Thoughts, beliefs and opinions
Founded February 21, 2012, Triple-X Workers' Solidarity Association of B.C. is the first registered association in Canada that focuses exclusively on sex workers' employment. According to Triple-X's constitution, the purpose of the association is: "To advocate for better jobs in the Triple-X industry."
According to the association's membership bylaw (filed with the Registrar of Companies May 21, 2014), you must be employed in Triple-X work to become a member. Only persons who have "agreed to the direct exchange of sexual stimulation for financial compensation within the last six months and intend to continue to work in the Triple-X industry" can join.
|Triple-X leads the Red Umbrella March in Vancouver, 2014. Photo: Philip Lo|
Evidently Triple-X offers a service - association membership - that is not offered to the general public. And, it is the very purpose Triple-X was created for: to "counsel" and "encourage" members "to provide sexual services."
In other words, sex workers' associations that focus on employment conditions (such as Triple-X) have effectively been outlawed. Under the Societies Act, board members are not allowed to materially benefit from the non-profit societies they direct. It would be any staff of the association, and possibly even the members themselves who could be breaking the law.
What about free speech?
Everyone has the right to have her or his own thoughts, beliefs and opinions, and the right to communicate, publish and broadcast them.
Advertising sexual services [s.286.4] makes it an offence "to knowingly advertise an offer to provide sexual services for consideration," unless it is an "advertisement of their own sexual services." [s.286.5 Immunity]
|Escort Cards from the 1880s. Collection of Alan Mays|
In order to aid police in their search for illegal sex-business ads, PCEPA added any material that "is an advertisement of sexual services" to the list of materials police can get a warrant to search for, seize and forfeit. The list also includes crime comics, child pornography and voyeuristic recordings. [s.164]
To further aid police in identifying and charging clients of sexual services, PCEPA allows for the authorization to intercept private communications to do with "obtaining sexual services for
consideration," as those communications are now a crime.
"Everyone who communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of an offence." [s.286.1]
In other words, it's now legal for police to tap sex workers' phones and email accounts in order to find and arrest clients. The exhaustive list of other crimes under Section 183 - Invasion of Privacy, includes everything from "advocating genocide," "weapons trafficking" and "facilitating terrorist activity," to "municipal corruption," "use or alteration of nuclear material," and "high treason."
Everyone has the right not to be searched and not to have her or his property taken away without good reason.
Right to sexual expression
The Harper government's ultimate goal with the Protection of Communities and Exploited Persons Act is to end prostitution in Canada. Justice Minister Peter Mackay said so himself: "Let us be clear about Bill C-36's ultimate objective: that is to reduce the demand for prostitution with a view towards discouraging entry into it, deterring participation in it and ultimately abolishing it to greatest extent possible."
By making paying for sex a crime, Harper's legal trickery tries to skirt the issue of sex workers rights -- in particular, the right to life, liberty and security. But you can't make only half a transaction a crime. Sex for pay is like two sides of the same dollar bill.
Laws that make paying for sex a crime infringe upon our sexual freedom, in particular, the freedom to set the terms under which we agree to have sex. And the new laws go even further than that. It's not only a crime to pay me for sex, it's a crime to live with me. It's a crime to fraternize with me. It's a crime to love me.
Sex workers are being shunned by the law -- excluded from society. That's a violation of our right to associate with others. My rights are sex workers' rights. I think most Canadians would agree.
[For a full text of the laws, see:
Come to the 3rd Annual Red Umbrella March for Sex Work Solidarity, June 13, 2:30 p.m. Vancouver Art Gallery, Robson Street. Bring a red umbrella. Dress up. Have fun!
About the Author
Andrew Sorfleet has worked in the sex industry for over a decade and has been a sex workers' rights activist since 1990. He is currently president of the board of Triple-X Workers' Solidarity Association of B.C.