Is Canada’s New Anti–Sex Work Bill Unconstitutional?

Is Canada’s New Anti–Sex Work Bill Unconstitutional?

Is Canada’s New Anti–Sex Work Bill Unconstitutional?

The bill purports to target only those who purchase sex, but threatens to indirectly criminalize many of the services, spaces and personal interactions that would make it possible for sex workers to openly do business.


If Canada’s Conservative government gets its way, the country could soon get slapped with a new anti-prostitution bill that—while promising to rescue sex workers from harm—might end up hurting far more than it would help.

In a landmark decision last year, the Canadian Supreme Court struck down many of the country’s major statutes against prostitution—a ruling that could have effectively decriminalized sex work. In response, Prime Minister Stephen Harper’s government is now pushing C-36, a bill that would once again broadly criminalize the buying of sex, largely restoring a regime of anti-prostitution enforcement that the high court already deemed unconstitutional.

The bill purports to target only those who purchase sex and not the selling of sex, per se. But it threatens to indirectly criminalize many of the services, spaces and personal interactions that would make it possible for sex workers to openly do business.

Strictures against “Advertising sexual services” in the bill appear to be so broad, they might in many cases ban any collective enterprise related to sale of sexual services, from running a “bawdy house” in one's home, to using an online classifieds site.

The bill attempts to comply with the Supreme Court’s 2013 ruling—which found the earlier restrictions on prostitution overly broad and punitive. The draft legislation contains a refined ban on “Communicating for the purpose of selling sexual services in public places.” The latest version limits enforcement to explicitly child-oriented places, like schools, daycare providers and playgrounds. Though “communicating” could be interpreted as just discussing the potential sale of sex.

The law stops short of completely outlawing the exchange of sex for money, but instead hopes to kill the trade by a thousand cuts, through convoluted commercial and legal barriers.

Nonetheless, advocates for decriminalization of consensual sex work say this new bill, far from eradicating the world’s oldest profession, would erode sex workers’ ability to assert their rights: they will find it harder to congregate in public, or even communicate privately. And with their client base depleted, they will suffer economically, and ultimately lose leverage to negotiate their pay and working conditions.

Robyn Maynard of Stella, a Montréal-based social service provider for sex workers, recalls that after the Supreme Court decision was issued, people were “feeling like, finally, the courts were recognizing their [need for the] ability to work safely.” But now “people feel really betrayed that suddenly this new law…has just come down that would again endanger them and their ability to protect themselves while working.” Street-based sex workers in particular, she says, “are terrified of being recriminalized under this new legislation,” and she notes that among the community she works with, “one of the most stressful things that sex workers have to deal with is always hiding from the police. And this is something that really clearly under the new law is still going to be carried out."

Katrina Pacey, litigation director of the advocacy group Pivot, says that the crackdown will disproportionately affect sex workers who do business on the street. (Advocates say that enforcement against indoor sex work activities is often less severe, since they are allowed to operate clandestinely as “escort services” or ads for “massage parlors.”)

To avoid being caught “communicating” about their services, Pacey says, sex workers who sell outdoors will be pushed "into more dark and isolated areas of cities.” Under the new restriction on soliciting in the vicinity of child-oriented places, people might try to avoid any street near a playground or school. And on a cultural level, such laws send the message that conservative mores about “protecting” children require shaming and ostracizing sex workers.

For indoor sex workers, the restrictions on advertising could lead to miscommunication about the nature of the work. For example, a transgender sex worker could find herself in danger if she cannot openly communicate about her gender identity before she receives a client. “Not being able to advertise, not being able to just speak to clients honestly about it, is really depriving them of a lot of opportunity just to protect themselves and run the business in the way that's best for them,” Pacey says.

The bill follows the so-called “Swedish model”—a framework for regulating and restricting prostitution, which has been promulgated in Nordic countries, that purports to target consumers of sex work but not sex workers themselves, so as to limit the “demand” for sexual services. But studies on the model's effectiveness show that imposing barriers on “the market” simply makes workers’ lives harder. It might even, ironically, constrain their ability to exercise choice in their work, by destabilizing and impoverishing them. It’s hard to transition to a better labor situation when you’re poor, near homeless, socially isolated and under police surveillance.

This precariousness may impact public health as well. Groups like Stella emerged in part to fill gaps in the social service system, since wary sex workers often conceal their work from health providers, which in turn limits their access to services like reproductive care or HIV/AIDS testing.

From a public safety standpoint, though the bill does not center on directly arresting sex workers, advocates fear it will nonetheless end up diverting police resources to pursuing clients and surveilling the sex industry. This, Maynard says, could come at the expense of tackling the much more immediate issues of violence against sex workers, often done by predators who believe they can get away with targeting stigmatized individuals.

“If a sex worker experiences violence while working,” Maynard says, “she's worried that she won't be taken seriously because she is a sex worker”—reflecting the victim-blaming stereotype that “'she knew that she was in a dangerous situation.'"

The bill’s preamble proclaims that the government seeks to "protect human dignity and the equality of all Canadians by discouraging prostitution.” But to rights advocates, the law perpetuates, even enhances, many underlying forms of structural inequality reflected in, but not exclusively the product of, the sex trade, including gender oppression, racism and poverty. Overpolicing, even in the name of salvation, hits people of color, women and LGBTQ workers the hardest.

Naomi Sayers, an indigenous sex-worker rights activist, criticized the government's framing of sex workers as victims only in the narrowest sense: “The alienation, isolation, and denial of services from the policing agencies and domestic violence organizations are re-traumatizing in itself.”

Ultimately, sex workers worry the bill would create a new class of victims—those who are victimized by the law itself. Amy Lebovitch, an activist with Sex Professionals of Canada and a litigant in the Supreme Court case, recalls a recent incident in which she says her colleagues were lured to a hotel by a business call and then targeted by a police sting operation. Though they were not arrested, the harassment they experienced left them frightened and disrupted their business, apparently in order to just locate and expose sex workers in an "anti-trafficking" aid campaign. This, Lebovitch laments, was their way of community outreach.

Looking ahead to a new era of anti–sex work law, Lebovitch says, “I can see more things like that happening. I can see police being given much more power to find us and to ‘save us’ from our clients and from ourselves.”


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