Former sex worker Kerry Porth and policy expert Genevieve Fuji Johnson say that Bill C-36, far from protecting sex workers and communities, will create more harm.
Earlier this month, the Government of Canada introduced Bill C-36, the Protection of Communities and Exploited Persons Act. With this bill, the Government rejected decades of evidence and ignored the expert insights of key stakeholders. The proposed legislation is an enormous disappointment to those who believe in the importance of evidence-based policy and the processes that are involved in formulating such policy.
The bill appears to replicate provisions that the Supreme Court of Canada ruled in Bedford were in violation of the Charter of Rights and Freedoms. In December 2013, the Court ruled unanimously in favor of Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, the sex workers who had launched the case in Ontario in 2007. In its ruling, the Court responded to evidence, largely derived from the legal testimonies of and social scientific interviews with sex workers, that certain criminal laws concerning adult prostitution increase the vulnerability and stigmatization of sex workers.
It is well documented that, as a consequence of such laws, sex workers typically work alone, avoid working in regular premises, engage in “out-call” work, and either transport themselves or are transported by clients to these locations. Sex workers generally do not hire drivers, bodyguards, or booking agents because these individuals could be understood to live on the avails of prostitution. Given the communication law, street-involved sex workers are often confined to isolated, darkened, and unsafe areas. They frequently have to quickly get into vehicles without discussing details of the proposed transaction, without taking time to make judgments about the propensity of the prospective client to violence, and without surveying the vehicle for broken door handles or for items that may be used as weapons, all of which are critical safety measure for sex workers. The Court was clear that the impugned provisions violate the security of sex workers’ rights. It’s hard to see how provisions in the proposed legislation will withstand judicial scrutiny.
Bill C-36 appears to reinstate the spirit if not substance of the laws the Court found unconstitutional. By criminalizing the purchasing of sexual services, the bill would ensure that sex workers have to continue to conduct their business in an illicit and stigmatized context.The bill would make it a criminal offence to communicate for the purposes of offering sexual services in any place where a person under the age of 18 may be reasonably expected to be present. Since this is virtually anywhere, this provision hardly differs from the communication provision struck down in Bedford. Bawdy houses—indoor locations where sex work occurs—are no longer prohibited, but the proposed provision against advertising sexual services would make it impossible for sex workers to work in safer indoor locations. Many would have to take their trade to the streets.
In addition, the Government has failed to recognize the policy expertise held by sex worker organizations across the country. Typically, public policy is developed with important input from stakeholders such as industry representatives, technical experts, and selected civil society organizations. The rationale for their inclusion is their expertise concerning a given problem and approaches to addressing it. In the proposed bill, the Government drew from a single two-hour meeting during which sex work advocates were vastly outnumbered by anti-prostitution campaigners and members of law enforcement. Instead of seeing sex worker organizations as stakeholders with first-hand knowledge about how to end the violence and exploitation within the trade, the Government views them as victims in need of rescue by state authorities.
Sex workers have knowledge of concrete measures that should be taken to minimize risks of harm. They also have insights into the kinds of resources that would be necessary to provide opportunities to individuals wishing to leave the trade. Organizations such as Providing Alternatives Counselling and Education (PACE), Sex Professionals of Canada, Sex Workers United Against Violence, Stella, and Maggie’s are in a unique position to provide policy-relevant knowledge toward achieving an evidence-based legal framework for prostitution.
Since the 1990s, the sex worker community has become increasingly organized. For example, working with Pivot Legal Society, over 90 sex workers in Vancouver contributed legally sworn testimonies concerning their experiences with the criminal law. These testimonies were compiled into a report,Voices for Dignity (2004), and presented to the House of Commons Subcommittee on Solicitation Laws in the mid-2000s and in Bedford in the late-2000s. In the former, the majority of subcommittee members concluded that the harms associated with prostitution would best be addressed through general application criminal laws and that sexual activities involving consenting adults should not be criminalized. In the latter, the majority in the Ontario courts and the Supreme Court concluded that the impugned provisions should be struck down because they cause greater harm than good.
Sex workers make up an invaluable epistemic community. Drawing expert knowledge from this community would significantly enhance the effectiveness of a new approach to governance in this area. It’s time to listen to them.
Genevieve Fuji Johnson is an Associate Professor of Political Science, Simon Fraser University.