The anti-sex work laws introduced by Stephen Harper's Conservatives in 2014 are facing a constitutional challenge this week. This is part one of three of Ricochet’s coverage.
Sex workers and their lawyers are taking the government to court this week to challenge the Harper-era federal law that experts say is still putting marginalized people in danger.
The Canadian Alliance for Sex Work Law Reform (CASWLR) along with five individual sex worker applicants and one former escort agency owner will be presenting arguments in Ontario Superior Court in Toronto.
“We’re taking the current government to court because they failed dramatically at protecting sex workers rights,” says Jenn Clamen, the Alliance’s national coordinator.
Formed in 2012, the Alliance is a network of 25 sex worker organizations across Canada — predominantly led by and for sex workers. The aim is to fight for a new legislative framework for sex workers that is based in human rights and worker solidarity.
Sandra Wesley, Executive Director of Stella l’amie de Maimie in Montreal, one of the Alliance member groups, says the law needs to be repealed. She speaks about this in detail in this exclusive interview on the laws and the upcoming hearing.
The Conservative parliament in 2014 criminalized sex work for the first time in Canadian history with a tough new set of laws. They did so under the ideological and absurd idea that sex workers are inherently exploited and that prostitution can be eradicated through criminalization.
The then-justice minister claimed the Protection of Communities and Exploited Persons Act (PCEPA) would “protect” sex workers, even though sex workers and experts have said repeatedly that criminalizing any aspect of sex work harms sex workers, Clamen said.
The member groups that make up the Alliance serve “thousands and thousands of sex workers across the country,” says Clamen. “A lot of the sex workers who provided evidence in our case are working and living in poverty, Indigenous sex workers, women who are working outdoors and are constantly surveilled, Black sex workers who experience racism and targeted by profiling, to name a few.”
Clamen said every single sex worker is harmed by criminalization, whether they're the most marginalized sex workers, or they’re more privileged sex workers. “There's this myth that only certain people experience exploitation, or only certain people have to make difficult choices. When, in fact, all sex workers are working in difficult conditions and making difficult choices every day — and part of that exploitation exists as a direct consequence of criminalization.”
Trudeau’s betrayal of sex workers
In the years that followed the passage of PCEPA, Canadian sex workers waited patiently for the new “feminist” Liberal government to take action on their behalf — Prime Minister Justin Trudeau had promised to revise the law once in power.
The new laws, which criminalized the exchange of sexual services for the first time, directly defied a Supreme Court ruling and reproduced many of the harms to sex workers identified in the Bedford case.
Despite their election promises, and their record of voting against PCEPA as it made its way through the House of Commons, the Liberal government has remained silent around these laws ever since.
Beginning in 2015, sex workers across Canada spent a year and a half strategizing to produce a set of more than 50 recommendations for law reform that looked at criminal law, immigration law, employment law, health and safety frameworks, as well as public health, education, policing, and housing. These recommendations represent a consensus amongst sex workers across the country that criminalization harms especially the most marginalized sex worker and that decriminalization is an essential first step towards health, safety and dignity.
Despite the Alliance’s attempts to educate parliamentarians on what a holistic framework for sex work law based in human rights could look like, they refused to take action.
“I think that one of the characteristics of this particular government is that they pay a lot of lip service to popular words like feminism, reconciliation, and equality,” says Clamen. “They just don't think about what it means in practice. All of these words actually have great significance in the context of our case.
“We have Indigenous sex workers bringing forward realities around the harms of colonialism in law, like the criminal code. We have an equality argument that demonstrates the discrimination sex workers experience based on gender and Indigeneity, and we demonstrate how sex work laws put women at greater risk of targeted violence.”
As Clamen notes, sex workers have been fighting to change dangerous and discriminatory laws for over 40 years.
Since the Liberal government has not fulfilled their promises, going back to court was the only option. As the legal arguments by the applicants state, “The impugned legislation could not stand in Bedford, and it cannot stand now.”
Sex workers fighting back
This week Ricochet will be present at the Ontario Superior Court as the CASWLR sues the Canadian government. This case is vital to all sex workers across Canada.
In a press conference on Thursday, fact witness Ellie Ade Kur addressed how PCEPA “intensifies some of the scrutiny policing, targeted harassment and violence against Black sex workers” and how important it was that the case was being heard in Toronto. “This city specifically has a very long and troubled history of anti-Blackness” with Black communities being “20 times more likely to be shot by Toronto police.”
Ade Kur spoke of the consequences of PCEPA on Black sex workers as “not just an issue of policing, but the law itself.” She adds, “it's not just that police fail to act. It's that police act as aggressors empowered by harmful laws.”
Black sex workers, she argued, “are often required to rely on existing networks of other Black sex workers to help and support one another” by “sharing space, by sharing supports, by splitting the cost for services like drivers and booking fees and screening supports.”
As a result, Black sex workers in Toronto are reporting, “that it's very difficult to support, to protect, and to extend help to one another, because Black sex workers more likely to experience arrest and prosecution under third party offenses in ways that their white and non-Black counterparts do not experience.”
Fact witness and executive director of Butterfly, the Asian and Migrant Sex Worker Support Network, Elene Lam, addressed the intersecting harms of the current laws on Asian and migrant sex workers at the same press conference.
Lam said that when the Butterfly helpline rings at midnight her heart stops. She doesn’t know whether a member has been arrested or even murdered.
“Sex workers are less likely to get help when they need it,” she said, referring to work injuries and assault. In the Asian massage parlours Butterfly provides support to, “sex workers and managers have indicated they are afraid of disclosing any involvement in the sex industry, because it threatens their livelihood, and they may be put in prison, lose their immigration status or get deported.”
She talked about Asian sex workers being arrested when they helped other sex workers, with many women charged for different sex work related laws, including helping other workers screen clients and advertise. “Even though there is no evidence of exploitation,” Lam said, “They are still being charged and put in prison.”
What to expect this week
At the hearing this week, there will be familiar faces, such as fact witness Valerie Scott, one of the original applicants in the Bedford challenge that lead to the Conservative government’s radical dishonouring of sex worker rights.
Scott is still involved in sex work. “The Orwellian named and themed Protection of Communities and Exploited Persons Act affects me directly,” says Scott. “PCEPA’s stated objective is to protect us while legislating an entire community out of existence. And therein lies the seed of its inconsistency. How on earth can such a contradictory objective work? PCEPA’s objective is wholly contradictory and inconsistent.”
New allies have also made legal submissions that support the Applicant position and detail the harms of PCEPA. Intervening will be the Women’s Legal Education and Action Fund (LEAF).
“Historically, LEAF has not had a position on sex work and abstained from intervening in litigation, or making law reform submissions on sex work,” says Pam Hrick, the organization’s executive director and lawyer. Hrick says that not doing so, “has prevented LEAF from engaging in meaningful action or dialogue with the sex work community.”
She says the organization, “saw the development of a position on sex work as necessary for LEAF to ensure that our feminism remains inclusive and representative, given that sex work is a highly gendered and racialized industry.
“As an organization, focusing on advancing gender equality for women, trans, and non-binary people, we felt it was important to highlight how the applicants – many of whom are sex workers and are women – have been harmed by the laws, despite the legislation’s stated purpose of protecting marginalized women. We wanted our advocacy to centre the lived and actual experiences of sex workers.”
The Black Legal Action Centre (BLAC) is also an intervenor. The Centre opened its doors to the public in 2019. This is their third intervention and their first involving sex workers.
Nana Yanful, the organization’s legal director, said she “was honoured” to be approached by the Canadian Association of Sex Work Law Reform to participate in the case.
Previously Yanful was engaged with the Bill C-36 hearings, appearing before the Senate on behalf of the Canadian Council of Criminal Defence Lawyers.
Yanful said it was important for her “to bring this intervention opportunity to BLAC because the criminalization of sex work is a racial justice issue.”
“Because of the unique ways Black communities are affected by the criminal punishment system, I thought it was critical for BLAC to speak out against the criminal provisions that empower law enforcement to surveil, arrest, detain and charge Black sex workers and third parties” she said.
As the applicant factum states, “criminalization does not stop sex workers from participating in sex work—nor does it provide other viable options or resources—but it does shape their labour conditions.” Read the full applicant factum here.
Correction: Nikki Thomas was incorrectly identified in an image. Ricochet apologies for the error.