Sex Work in Canada: Where Do Canada’s Priorities Lie?
“The Red Umbrella is the worldwide symbol of the sex workers’ rights movement. It came into existence as the movement’s symbol in 6 - 8 June 2001 in Italy, during the 49th Venice Biennale of Art. For some sex workers, red is the colour of love, while others state that the umbrella symbolises protection.” - Global Network for Sex Work Projects
TW: This article discusses themes of sexuality and violence that some readers may find unsettling.
If you were asked if the federal government in Canada should legalize and regulate prostitution, would you agree or disagree? What would be your reasoning for your answer?
Consider for a minute that sex workers are just like you and I. They have bills to pay, must eat and sleep just like us, want to be able to see a doctor when they’re sick, and be treated with the same basic level of dignity that we also desire. Canada’s current approach to prostitution is not conducive to an equitable or dignified life for sex workers, but creates further harm, and has failed in its objectives.
Before continuing, a small clarification: “sex work” is a broad, umbrella term referring to the exchange of any sexual service for compensation, which includes, but is not limited to, prostitution. Prostitution, in Canada, is specifically the buying and selling of sexual acts consistent with existing statutes. Prostitutes will be referred to “sex workers” for reasons of dignity.
Canada v. Bedford was a landmark Supreme Court of Canada case which provides the basis for current policy. Initially brought to Ontario’s lower courts by three sex workers, the plaintiffs argued that sections 210, 212(1)(i) and 213(1)(c) violated their rights to security, guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. The lower courts ruled in their favour and the case was appealed up to the Supreme Court. In 2013 Chief Justice McLachlin delivered a ruling that upheld the lower court’s decision, and required the federal government (led by then-Prime Minister Stephen Harper) to amend Canada’s Criminal Code within 12 months to be consistent with the Charter. The sections in question laid out prohibition on operating or being a member of a brothel, living off the profits of prostitution, and communication (i.e., advertising) for the purposes of prostitution. Bedford successfully argued that these provisions caused undue harm based on principles of arbitrariness, overbreadth, and disproportionality.
This ruling led to the current policy embedded in Bill-C36, the Protection of Communities and Exploited Persons Act, passed in 2014. The bill amended the sections challenged in Bedford, and further implemented a criminalization on the purchase, not the selling, of sexual acts. This policy was heavily influenced by the Nordic model, named due to Sweden’s demand-side criminalization policies implemented in 1999. Advocates for this model argue that it reduces human trafficking rates which, admittedly, had some initial academic support. However, more recent studies have shown that many countries do not sufficiently collect data on human trafficking, making it difficult to determine a relationship between prostitution criminalization and trafficking.
This model is founded largely on morality-based paternalistic views of prostitution that ignore a sex worker’s agency and autonomy. This becomes painfully obvious in Bill C-36 when reading the preamble:
“…grave concerns about the exploitation that is inherent in prostitution and risks of violence…”
“…social harm caused by the objectification of the human body…”
“…protect human dignity and equality of all Canadians by discouraging prostitution…”
Prostitution is now “the bad thing” that happens to good people; sex workers are simply exploited victims. This perception formed part of Canada’s arguments, which Chief Justice McLachlin outright rejected in her written decision (para. 60). While the legislation was primarily intended to address the Constitutional issues in Bedford and reduce harm to those engaged in prostitution, the paternalistic approach in policy and law fails to do this for two main reasons.
Firstly – criminalization of buyers has shifted the power dynamics in favour of the buyer. Sex workers don’t want their clients arrested, so they move to more isolated, poorly-lit areas to avoid police detection. Buyers also hold the power in negotiations. A sex worker might want to negotiate for a higher price or safer sex practices, but risks the buyer going to another worker if they don’t yield to the buyer’s demands. This shift arguably increases the ability for buyers to exploit sex workers and expose them to higher risks of infection, physical, and sexual violence. Studies published in 2016 and 2018 that examined conditions that sex workers practice in found conditions that allowed indoor practices as well as a legalised framework resulted in fewer violent crimes such as rape and battery against sex workers.
Also – do you remember Robert Pickton? Yeah. Chief Justice McLachlin remembered (para. 158).
Secondly – continued criminalization of prostitution creates barriers to accessing crucial social services, including medical and legal services. Criminalization of prostitution, even if the sex workers themselves are not prosecuted for sex offences, encourages stigma and discrimination against sex workers. This type of work is not considered legitimate – it’s dirty, it’s associated with crime, drugs, and disease. The “N.I.M.B.Y.” attitudes are so palpable; it is literally hurting people. The Change Center for Health and Gender Equity thoroughly outlines the barriers, and resulting consequences of lack of access to sexual and reproductive services: heightened mortality due to unsafe abortions; discrimination during prenatal and antenatal care; and high rates of infection of human immunodeficiency virus (HIV) among others.
Law enforcement officers are some of the worst offenders, ironically. From the Change Centre, stigma from criminalization of prostitution has facilitated harassment and coercive police practices among sex workers, particularly female-identifying sex workers. This is also significantly worse for Indigenous women and girls who are over-represented – comprising approximately 50% of sex workers, while only making up 2-3% of Canada’s general population. Canada has not published any statistics on prostitution since 2014, making any further policy reforms difficult to evaluate.
New Zealand offers other countries a strong example of a legal and social framework for legalization. The Prostitution Reform Act of 2003 decriminalized all exchange of sexual services for adults, including operating a brothel. In conjunction with this legislation, New Zealand expanded employment and human rights legislation to help empower and protect sex workers. Evaluations of the policy, published in 2008 and 2012, determined that the “social evils” that critics of the legislation were concerned about had not come to pass, but had indeed been successful at protecting sex workers and promoting their health and welfare.
In 2015, Liberal leader and now-Prime Minister Justin Trudeau included reform for Bill C-36 as part of the Liberal platform. As of April 2021, there has still been no meaningful evaluation and reform to Canada’s approach to prostitution.
New Zealand has shown the world how we might make meaningful policy that improves the welfare and dignity of sex workers – but policy must align with our priorities and values. If Canada wants to be a world leader in human rights, it must take serious steps to reform the legal and social framework for sex workers.
About the Author: Aimee Bowden is a current MPP student at the University of Calgary. She received her BA from the University of Calgary in 2019, majoring in both International Relations and Political Science with a focus on development and governance. Her capstone project is focused on analyzing government communication strategies on social media to increase HPV vaccine uptake in Alberta. Aimee’s research interests and passions lie in areas of creating equitable social policy solutions for marginalized and underrepresented groups, international governance and law, and human rights. She has held positions in government agencies as well as advisory and communications firms and spends her spare time reading and biking through Calgary.