Government arguments ‘ignore and minimize’ the lived reality of sex workers

Canadian sex workers make the case for decriminalization as Charter challenge wraps
Veteran sex worker and human rights activist Terri-Jean Bedford said Prime Minister Justin Trudeau could do the right thing immediately by repealing the law and decriminalizing sex work.

This is the third and final instalment in Ricochet’s three-part coverage of the landmark challenge to Canada’s sex work laws. Read parts one and two.

“In 2013, the Supreme Court of Canada rendered its decision in Bedford, striking down the laws that criminalized sex work. After seven years of litigation, I was elated. It was almost as if there was a taste of freedom in the air.”

“In 2014, the government of Prime Minister Stephen Harper introduced Bill C-36 the Protection of Communities and Exploited Persons Act (PCEPA). When I read the bill, I felt as though the rug had been pulled out from under me. The proposed legislation was a manifestation of overt stigma and hatred against the sex work community that it sought to eradicate. I firmly believed – and on the basis of my experience, still do believe – that PCEPA is even more harmful than the laws that we had challenged in Bedford.”

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After two days of arguments by applicant interveners detailing the harms of the laws criminalizing sex work in Canada, the attorney general said in court that “ending the sex industry will not happen overnight.” At this, the Canadian Alliance for Sex Work Law Reform clapped back on Twitter. “Oh, sweetie, it will never happen, not as long as sex workers need the money. And we don't see you or any of the interveners putting energy into lining our pockets.”

It’s no wonder the Alliance was feeling sassy. They had been girding their loins through demeaning arguments from the respondents since they began preparing the case two years ago.

When Meaghan Cunningham, lawyer for the Attorney General of Ontario, presented her arguments to Justice Goldstein on October 6, her goal was clear: to show that sex workers were overstating the harms of these laws, and that the Conservative government was correct when it put the laws in place.

She argued that the courts should forgo analyzing constitutionality and trust the Parliamentary process.

Like all respondents with the Attorney General of Canada and the Attorney General of Ontario, Cunningham made the argument that PCEPA was designed to keep sex workers safe while the Canadian goverment worked to abolish sex work.

These laws were certainly not what was intended when Justice Susan Himel struck down the previous laws during the appeal process in 2012.

“The ways in which the lawyers for Canada and Ontario tried to minimize and ignore the firsthand testimony of sex workers and expert witnesses was troubling.”

The government framed the laws around communication as a minor inconvenience. When in reality, clear communication is a necessity of all sex work to establish consent, boundaries, and fees.

Massage parlour owners, as explained by Elene Lam from Butterfly: The Asian and Migrant Sex Worker Support Network, take a risk even keeping condoms on site because their presence “communicates” sex work to the multiple levels of law enforcement and surveillance, which workers are forced to endure everyday, regardless if sexual services are being offered. This exposes workers to health risks they would not be exposed to if the impugned laws were not in place.

When it was believed there might be some prohibitionists rallying in front of the courthouse, members of Butterfly: The Asian and Migrant Sex Worker Support Network, who were hosting a watch party at their location on Spadina, went to the court to support their friends inside.
Alex Tigchelaar

The Alliance says that a majority of sex workers will not call police when experiencing victimization. Yet police are permitted access into sex workers lives without consent, all under the guise of protection.

Interveners for the Crown trotted out all the same tired and paradoxical tropes sex workers hear from them year after year.

Among them were John Sikkema for the Evangelical Fellowship of Canada argued that the act of purchasing sexual services is inherently exploitative even if the worker does not recognize her own exploitation. The lawyer for BridgeNorth — an organization that exists, according to its website, “because slavery exists in Canada” — admits they are not experts in migration policies. However, to them, all sex work is trafficking, and people who migrate to Canada must be rescued from sex work.

This, among so many other reasons, is why sex workers and allies did not want to return to court. It is exhausting and traumatizing. Nobody should have to listen to religious zealots talking about what a person can or cannot do with their own body, for free or otherwise.

What happens now?

On the last day of the week-long hearing, Justice Goldstein said that he would not be taking the full year allowed to make his decision, but he gave no clear indication when he would hand it down. So sex workers are forced to wait for their human rights to be recognized by the courts.

Veteran sex work law opponent and sex worker Terri-Jean Bedford said Prime Minister Justin Trudeau could do the right thing immediately. “All Trudeau has to do is step up to the plate and keep his promise to repeal the law. None of this is necessary.” But as Sandra Wesley, Executive Director of Stella, l’amie de Maimie, pointed out in this interview, what political leader wants to be known as the pot and prostitution government? Enjoy your gummies, while sex workers are told their lives are acceptable collateral in a moral crusade.

PCEPA was not designed to protect exploited persons. If these laws actually supported sex workers, and protected them from exploitation and harm, then this coalition of religious organizations, conservatives, and anti-sex work activists would not be pushing so hard to make them stick.

Watching ideologues and attorneys defend laws that are dangerous to women’s bodily autonomy is an outrage. As co-executive director of the HIV Legal Network and Alliance member Sandra Ka Hon Chu said, “the ways in which the lawyers for Canada and Ontario tried to minimize and ignore the firsthand testimony of sex workers and expert witnesses was troubling.

“Counsel for the Attorney General of Ontario argued that sex workers just don’t understand the law — and that the harms sex workers face are based on their misunderstanding of the measures they could take to enhance their safety, despite all the evidence to the contrary.”

An issue of body autonomy

Do sex workers have to understand the law to know they are being harmed? If sex workers don’t understand the laws, who can blame them? They are oblique, unrealistic, circuitous, and cruel.

Co-executive director of the HIV Legal Network and Alliance member Sandra Ka Hon Chu.
Alex Tigchelaar

“Sex workers know too well how the laws affect them, and the Attorney General of Ontario’s dismissal of their experience was unsettling,” said Ka Hon Chu. “Even when they conceded that some sex workers experience harms, counsel for AG Canada insisted that this evidence was not ‘generalizable’ to all people who sell sex in Canada. But that is not necessary to ground a finding of a breach of Charter rights.

“In Bedford, the Supreme Court affirmed that evidence of even one sex worker being harmed by the challenged laws can establish the laws’ unconstitutionality.”

Thousands of pages of evidence were presented showing that cis and trans women would be safer without moralistic laws governing the appropriate way to earn a living. Criminalization makes it a woman’s fault if she is assaulted or robbed at work, because she is ultimately breaking a law.

Being gay is not inherently dangerous. Yet up until 1969 it was a crime to be gay in Canada. And when it was a crime to be gay, many gay peoples’ lives were utterly destroyed. When abortion was a crime in Canada thousands of women died because they were unable to receive safe procedures. Women would be forced to plead their case to medical gatekeepers, almost always men, proving they deserved to have a safe medical abortion. Many women were exploited and victimized when bodily autonomy was criminalized. People were assaulted, robbed, or worse in the process of trying to acquire safe abortions.

Amy Lebovitch, one of the original applicants in the Bedford case.
Alex Tigchelaar

Similarly, sex work is not inherently dangerous. Like queerness and abortion access, it is unconstitutional to make laws that harm sex workers because ideologues and anti-sex work crusaders find their actions objectionable.

Amy Lebovitch, one of the original applicants in the Bedford case (formally known as Bedford, Lebovitch and Scott), was watching the case carefully. “It’s feeling really intense,” she said, “but also, it’s so beautiful in many ways.

“Thirteen years ago, our movement here in Canada wasn’t connected in the ways that we are now. To see the coming together, and collective work that is being done on this case is really a beautiful thing. And to see the powerful interveners standing together with sex workers, really fills me with a sense of excitement.

“As for the government, and the ways in which they are, yet again, defending a set of laws, which harm and stigmatize our community, is really hard to watch, again,” Lebovitch says. “This so-called justice system isn’t set up to bring us any real justice, and regardless of the outcome, we will all still be here, still fighting, bringing awareness, and educating for true justice for sex workers.”

Intro quote from the Affidavit of Valerie Scott in Canadian Alliance for Sex Work Law Reform, Monica Forrester, Scott, Lanna Moon Perrin, Jane X, Alessa Mason and Tiffany Anwar (applicants) And Attorney General of Canada (respondent)

This series is dedicated to the memory of Alexandra de Kiewit, a beloved member of frontline communities in Canada fighting for the decriminalization of HIV non-disclosure, drugs, and sex work. Her work with people made vulnerable by the criminalization of drugs saved countless lives. Alex died on October 9. Her communities grieve this terrible loss.

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