New prostitution laws, same old harms to sex workers

Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality, and gender identity. Follow him on Twitter @kylekirkup.

After months of anticipation, the federal government announced Wednesday that it intends to introduce a new set of adult sex work laws. In a short press conference, Justice Minister Peter MacKay stated, “There will always be an inherent danger in this degrading activity.” Among other things, the new Protection of Communities and Exploited Persons Act criminalizes the purchase of sexual services, along with benefiting from another person’s work. It also criminalizes advertising sexual services online and communicating for the purpose of selling sexual services in public places, or in any other places where young people can reasonably be expected to be present.

Given the Conservative government’s approach in recent years, it should come as no surprise that the proposed legislation is set to criminalize a suite of activities related to sex work. When it comes to criminal justice policy, perhaps this government’s slogan should be: “Got a complex social issue? There’s a prison for that.”

The announcement comes five months after the Supreme Court struck down three of Canada’s sex work laws. In its unanimous decision, the court found that the former laws violated sex workers’ right to security of the person under Section 7 of the Charter of Rights and Freedoms. It gave the government one year to enact a new law.

The new legislation draws heavily upon the so-called Nordic model. But it goes much further with its provisions on online advertising and communicating for the purpose of selling sexual services in public places. First introduced in Sweden in 1999, the rationale behind that country’s Sex Purchase Act is simple – regardless of the specific context of the encounter, sex work always causes serious harms to individuals and the larger community. The threat of criminal punishment for purchasing sexual services is supposed to decrease – and eventually end – the demand for sex work.

Fifteen years after passing the act, Sweden is nowhere near ending the demand for sex work. Canada’s new legislation is likely to replicate the exact same harms that led the Supreme Court to strike down the former laws. Anxiously trying to avoid police detection, sex workers will continue to have little time to take precautionary measures, such as writing down a licence plate number, before moving to more isolated locations. With clients facing the prospect of arrest if they visit indoor locations, sex workers will also be unable to work in safer conditions.

On the day that the Supreme Court released its decision striking down the former set of laws in late 2013, Mr. MacKay issued a statement indicating that the government was “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.”

Following this statement, in early 2014, the government initiated a month-long public consultation through the Department of Justice website. The six questions felt less like the rigorous, methodologically sound questionnaire you might expect for such an important issue, and more like the Survey Monkey a relative sends out a month before a family reunion. Not only did the survey allow respondents to self-select and to submit multiple responses, but it also required them to find the government website in the first place. ADepartment of Justice report released Monday summarized the results of this questionnaire – 56 per cent of respondents indicated that purchasing sexual services should be a criminal offence, while 34 per cent indicated that selling sexual services should be.

Now claiming to have the support of Canadians, the new legal regime proposed by Mr. MacKay continues down the path of attempting to respond to a complex social issue through criminalization. The approach is doomed to fail. In light of the harms caused by criminalizing the purchase of sex, there are also serious questions about whether the proposed legislation will withstand another Charter challenge.

Like other forms of labour, sex work may reflect deeply ingrained social inequality on the basis of a series of interrelated categories of identity and experience, including gender, race, disability and socioeconomic status. As a society, we should be concerned about any labour practice – and there are many of them – where people have not been able to make meaningful choices about the work they do.

In the face of this complex social issue, however, the government should resist the impulse to enact legislation that purports to protect the vulnerable, while actually making the working conditions of sex workers even more dangerous than they already are.

Rather, the government should listen carefully to what sex workers are actually saying about what they need to work safely and with dignity — it is not another ill-conceived criminal law.