Canada’s sex work laws are being challenged in court

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Correction: A previous version of this article incorrectly included the Centre for Gender and Sexual Health Equity as a partner of the Canadian Alliance, but they are not. The article has been updated for accuracy. The Runner regrets the error. 

Since March of 2021, the Canadian Alliance for Sex Work Law Reform (CASWLR) has been in the courts fighting the current laws around sex work in Canada. They argue that the current laws violate the rights of sex workers under the Charter of Rights and Freedoms.

In 2013, the historic case of Bedford v. Canada ended in a ruling that struck down the oppressive sex work laws at the time. The case argued the laws violated the rights and freedoms of sex workers and was therefore unconstitutional, and the federal government was given a year to respond. 

The next year, the Conservative government under then Prime Minister Steven Harper enacted a new set of laws based on the “Nordic Model” of end-demand sex laws still in place today. It was passed as Bill C-36, also called the Protection of Communities and Exploited Persons Act (PCEPA). 

This model criminalizes the purchase of sex but not the sale of sex, making sex workers dependent on criminalized clients, and assumes sex workers need to be “saved” and denies them bodily autonomy. 

The laws were meant to be reviewed after five years, but the review period only began in 2021, seven years after they were enacted. 

CASWLR, which is made up of united sex worker rights groups across the country to form a cohesive front and voice in the supreme court, has been spearheading the fight to decriminalize sex work at the federal level. This group includes Sex Workers Action Network (SWAN). 

The idea behind end-demand sex laws and PCEPA is to eradicate sex work by eliminating the demand. But advocates argue prohibition as a concept rarely works.

“People will continue sex work — sex work itself is not exploitive. It’s a condition under which sex workers are forced to labour that allows exploitation to flourish,” says Jenn Clamen, national coordinator of CASWLR. 

Not only has PCEPA failed in its goal of eradicating sex work, but has done the opposite, according to their legal factum to the federal government.  

“After seven years under the impugned provisions, however, it is now apparent the PCEPA has not achieved this objective…. there is no evidence – from Canada or anywhere – that the Nordic Model actually decreases the demand for sex work,” the factum reads. 

“It is beyond dispute the PCEPA has not eradicated sex work in Canada, as sex work offences declined in the years prior to the enactment of the PCEPA and increased fairly steadily since its enactment.”

In practice the PCEPA has made life extremely difficult and dangerous for sex workers, as the indirect criminalization of sex work means they’re unable to work safely. One of the primary issues with end-demand laws is it still views sex workers as victims, rather than workers in any other industry. 

“[The government] keeps conflating child abuse, with human trafficking, with sex work with underage sex, like they’re talking about so many different things…. And the only reason to throw them into the same conversation is as a manipulative tactic to continually ignore and erase sex workers,” says Clamen, adding that these are already offences under their own separate statues in the Criminal Code and so there is no need to pile them together.

CASWLR’s case specifically seeks to repeal Sections 213, 286.1(1), 286.2(1), 286.3(1), and 286.4. These sections pertain to the communication of sex work services in public spaces, clients of sex work, material benefit of associates, procuring of sexual services, and advertising sexual services, respectively. 

“Canada and Ontario’s case rests on one of the most harmful misconceptions of the PCEPA: that the criminalization of clients and third parties does not directly impact sex workers,” reads the CASWLR’s legal factum. 

Three sections of the Criminal Code criminalize third party involvement in sex work, including other sex workers, as well as advertisement. This is problematic as it criminalizes cooperation and the distribution of blacklists — problematic client lists — that would serve to keep workers safe. 

“Evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services,” reads section 286.2(3) of the Criminal Code, which prohibits sex workers from living together or working in an indoor space for safety and security. 

Screening of clients is a critical safety measure for sex workers beacause it allows them to vet potential clients and discuss services and payment prior to providing the service, says Jennie Pearson, research assistant and PhD student at the Centre for Gender and Sexual Health Equity (CGSHE). 

“Before you decide to enter private space with them, get in a car with them, engage in any sexual acts, you talk to them, discuss boundaries, discuss use of condoms and PPE, you discuss rates and you get a feel for [trust],” Pearson says. 

With clients being criminalized, there are reports of police patrolling common areas and harassing clients, which forces sex workers out of public view into higher risk areas or rush negotiations to avoid being seen. 

“If we weren’t harassed we would be able to be more choosy as to where we get in, who we get in with … because of being so cold and being harassed I got into a car where I normally wouldn’t have … I just hopped in cause I was cold and tired of standing out there [and] he put something to my throat [and] I had to [service him] for nothing,” said an anonymous sex worker quoted in CGSHE’S report Harms of End-Demand Criminalization. 

Working in a rented space is not usually an option either, as “the purchase of sex work is a crime, and using leased space for the purpose of a criminal offence is grounds to refuse a lease or to evict a tenant,” the CASWLR’s legal factum states. This forces sex workers into secluded spaces and back alleys to communicate their services, with little chance for help. 

While sex workers are technically afforded protections in regards to violence, few sex workers go to the police to report cases of violence or rape against them due to fear of losing clients and potential repercussions from clients or the police themselves. 

Compounding this issue are the challenges faced by minority and migrant sex workers. 

The problem of harassment and surveillance is so prevalant that “we actually hear that [sex workers] fear the police more than they fear perpetrators,” says Project Manager Angela Wu of SWAN. 

So long as sex work is criminalized, migrant sex workers will continue to be put in precarious positions and lack access to criminal justice and recourse, she says. 

“There’s immigration and refugee protection regulation that specifically prohibits migrants to Canada on some sort of temporary permit to engage in sex work. Most of the women we work with are immigrants or migrants, but they have precarious status in Canada.” 

She adds that migrant sex workers also face language barriers that prevent them from getting other forms of employment, and more needs to be done in general to support migrants coming to Canada. 

“The bottom line is that criminalizing any aspect of sex work [puts] sex workers into really dangerous situations,” Wu says. 

While the off-campus work hourly limit was recently temporarily lifted from 20-hours to 40-hours for international students with a study permit, there are still limitations. 

“[If] you’re an international student, you might have rights to get a part time job or get a full time job, except in sex work. So, sex work is singled out in our immigration policy as being prohibited. In in that way, immigrant sex work is criminalized,” Pearson says. 

Migrant sex workers are also at risk of deportation if they are caught preforming sex work, and are less likely to report an issue or violence against them. 

“They’re less likely to communicate openly with clients, because they might be afraid of a sting … [or] less likely to engage with community services or activism efforts because being associated with sex work could have serious consequences,” Pearson says. 

“There was a 41% reduction in access to health services and a 20% reduction in access to sex worker-led/community services (e.g. drop-in spaces, mobile outreach and peer support) after the implementation of PCEPA,” found the Harms of End-Demand Criminalization report.  

Overall, PCEPA has made life objectively more difficult and dangerous for sex workers, between rushed negotiations and harassment by law enforcement. 

Decriminalization would bring sweeping changes to the industry, allowing workers to work in safe places and negotiate without being rushed or surveilled. If recognized as legitimate work, sex workers would be able to have access to workers compensation and employment insurance as an independant worker.

In 2015, the Liberal party, along with all other parties beyond the Conservative government, argued against PCEPA on the grounds that it was flawed and unconstitutional legislation. Presently, the Liberal party is contesting CASWLR’s argument to repeal the legislature. 

“We’ve been in conversation with them for a very, very long time for decades. And it’s shameful that a group of people are telling [the government] that the criminal law actually isn’t protecting them and [the government is] saying no to that … they’re actually denying what’s happening because they’re not recognizing sex workers as experts in their own experience,” Clamen says.

“The removal of criminal laws against sex work is a first but important first step to removing some of the criminalization in the lives of our community members. Whether or not these sex work laws are deemed unconstitutional, we know that many sex workers in our community will continue to be criminalised by other laws, because law enforcement target our communities with all of the tools at their disposal,” reads CASWLR’s fact sheet on the legal case.

The Harms report concludes with a list of recommendations, including centering sex workers voices in the development of policies, repeal of immigration and protection regulations, and to work directly with sex workers and sex work organizations.  

“In the way [the government] use words like reconciliation, and the way they use words like feminism, but then they fail to actually address the systemic problems that many of our community members are facing, and they lean into criminal law as a response to those problems when there’s documented evidence that criminal law actually exacerbate those problems and doesn’t provide a level of protection,” Clamen says. 

“The problem is often the stigma that’s out there, and the stigma we’ve seen within law enforcement,” Wu says. 

“The women that we support most often [say] they fear the police more than they fear perpetrators. It’s the fact that [the women] face multiple layers of criminalization and they’re really just pushed into the shadows, and perpetrators know this,” she says.  

“Once decriminalization is reached, then you still need to work with sex workers to come to figure out how [to] want to create anti harassment policy, [how] to address stigma, how to make sure that workers rights are being upheld now that we don’t have to deal with the criminal system,” Pearson says. “It would also, hopefully, validate sex work as a form of labour and eliminate that perception that violence is inherent to sex work.”

“The government talks about protecting sex workers, and yet they fail to recognize that people who work in the industry, who have no intention of stopping work in the industry, have a right to that protection as well have a right to the mechanisms that they can protect themselves,” Clamen says.