Explainer: The Legality of Sex Work in Canada During COVID-19

Millions of Canadians, including sex workers, have lost their jobs due to the pandemic

(Flickr/ Matt Zulak)

Sex work and human rights advocates are calling on the federal government to stop enforcing sex work laws during the pandemic. They say enforcing them is creating undue harm and contributing to human rights violations.

In late 2014, Bill C-36 was passed in the House of Commons to amend the way in which the Criminal Code “addresses voluntary prostitution activities between consenting adults.”

Prior to Bill C-36 being passed, two types of prostitution were not illegal according to the Canadian Criminal Code: street prostitution, if the sale and purchase of services occurred in private, and “out-calls” during which the sex worker met their client at a designated location. Legally, that location could not be used regularly for the purpose of sex services.

The introduction of Bill C-36 created two new criminal offences in regards to prositution, prohibiting the purchase of sexual services in any time or place, and prohibiting advertising the sale of others’ sexual services.

The idea behind criminalizing the purchase of sexual services was to target people who capitalize on the demand for sexual services and to protect vulnerable people targeted by prostitution.

The bill was introduced in response to the Canada v. Bedford case of 2012, when three Ontario sex workers argued in court that three provisions of the Criminal Code violated sex workers’ constitutional right to security by forcing them to work in secret. At the time, the Criminal Code outlawed public communication for the purposes of prostitution, operating a brothel, and living off of the profits of prositution even though prositution itself is legal.

Under Bill C-36, sex workers are considered victims of sexual exploitation that disproportionately impacts women and girls.

Sex work is still legal in Canada, although the purchase of the service is not.

Amnesty International Canada has joined the call for federal Justice Minister David Lametti to temporarily suspend the enforcement of prostitution laws during the pandemic.

In an interview with CBC, women’s rights campaigner for Amnesty International Canada Jackie Hansen said the government has taken a position “where they won’t provide [sex workers] income support and yet will criminalize [them] if they work.”

Advocates believe decriminalizing sex work would ease the burden on workers by allowing them to do their jobs without being surveilled by police.

Jenn Clamen, national co-ordinator of the Canadian Alliance for Sex Work Law Reform, told CBC that “because sex work is not recognized as work, the labour standards and protocols that other industries are receiving right now are not available to the sex industry.”

Sex workers do not qualify for Employment Insurance or the Canada Emergency Response Benefit.

In an interview with Amnesty, Clamen explained that the “criminalization of sex work means that the informal labour and income that sex workers generate is not recognized as legitimate labour, and leaves sex workers without recourse should labour exploitation arise.”

Bill C-36 is due for its mandatory five-year review this year. Lametti’s office said it will provide an “appropriate forum for parliamentarians to examine the full range of effects that this legislation has had since its coming into force.”