The Conservative government has released their new proposed legislation on prostitution, and sadly, it is pretty much what you would expect. You can read a summary of the new bill here and the complete text here.
Gender Focus has published numerous articles since the Supreme Court ruling on the Bedford decision and its implications on social policy and its real impact on the lives and livelihoods of people who engage in sex work, so it follows that at least one of us would have something to say about the new bill. But while I can’t speak for my fellow contributors, I found myself at a loss when the news broke. I had suspected that the government would not bow gracefully to the Supreme Court’s ruling, but I didn’t anticipate that, in the name of making sex workers safer, the government would make them just as vulnerable as ever.
It’s the bait-and-switch approach that I find most confounding – the Protection of Communities and Exploited Persons Act starts off so promisingly, with a preamble stating unequivocally that prostitution primarily affects vulnerable women and children and offends their human dignity. But after acknowledging this, the bill focuses more on protecting the communities than the “exploited persons.”
The bill criminalizes the purchase of sexual services, or communication for that purpose, with maximum penalties of fines and 18 months’ imprisonment for summary conviction and five years’ imprisonment for an indictable offence – for an explanation of the difference between summary and indictable offences, go here. The fines escalate with each subsequent offence and “would be doubled if the offence were committed near parks, schools, religious institutions or other places where children could reasonably be expected to be present.”
The bill also prohibits a sex worker from communicating for the purpose of selling sexual services in public places where a child could reasonably be expected to be present. The maximum penalty for this offence would be six months’ imprisonment.
What the Conservative government acknowledges in the preamble of Bill C-36 and then wilfully ignores throughout the body of the legislation is that sex work is a consumer-driven business. The bill explicitly states that “the purchase of sexual services… [creates] a demand for prostitution,” but nowhere in the subsequent legislation does it offer sex workers any remedy for the fact that their clients will now be less willing to conduct screening interviews, negotiations or meet in a pre-arranged location, where the worker might have some safeguards in place, for fear of being met by police.
As always, the burden of this will be felt most heavily by street-involved sex workers, who are already more vulnerable to predatory behaviour because of the more informal nature of their contact with clients and who are also more likely to be poor, racialized, trans*, and/or experience addictions or mental health issues.
These women are the ones most likely to be driven by consumer demand rather than feelings of empowerment or agency and are probably the least likely to bring complaints to the police, given the other social factors and the lack of certainty that she will be taken seriously.
To recap: Bill C-36 will push sex workers further out of public spaces and restrict how they can advertise and screen potential clients. And it places a disproportionate burden on those who are already most vulnerable to exploitation.
How does this make sex workers safer, you might ask? Good question. It doesn’t.
Researchers from the BC Centre for Excellence in HIV/AIDS and the University of British Columbia surveyed 31 sex workers in Vancouver after city police there began targeting consumers rather than sex workers. They found “no significant change in physical and sexual violence rates against sex workers by clients in the year following the new policy.” Rather, “sex workers [are] losing control over the terms of sale, the report says, which results in them being forced to engage in unprotected sex and spending longer hours on the street in more clandestine locales,” where their isolation means they are less likely to have support, should they need it.
It’s worth noting that the B.C. study consulted actual current sex workers, not members of the public with only a vague and/or sensationalized idea of what sex work entails. The government, by contrast, has been touting the results of its online survey, which I previously wrote about here as showing that their response to the Supreme Court is supported by public opinion.
Vanessa D’Allesio, current sex worker and member of Maggie’s Board of Directors, offered a fabulous analogy on the ludicrousness of thinking an online public consultation is a legitimate means of gathering information: “I wouldn’t be asked to comment on employment standards in the fishing industry, so it begs the question as to why non-sex workers are considered the best source of information to inform legislation on the sex industry.”
According to the online survey, a (slim) majority of respondents, 56%, favour criminalizing consumers of sex work, while two-thirds of respondents don’t think that sex workers themselves should be criminalized.
Now, there were issues with the public consultation when it was first unveiled. Some critics claiming that the consultation was poorly publicized and only known about by special interest groups, but that’s not strictly relevant. The fact is that a national referendum could have been held on this issue, and 98% of all Canadians could have voted for the very legislation currently being tabled, and that still would not make it constitutional.
This legislation does not exist in a vacuum, and while it is a long and arduous process to make a Charter claim and get a verdict (the original Bedford case was brought forward in 2007), all Canadian laws must be compliant with the Canadian Charter of Rights and Freedoms.
The case for the Charter rests on the understanding that some things might be popular, but that doesn’t mean that they are legally defensible – or morally correct, for that matter.
Depending on the surveys you consult, the death penalty and restrictions on abortion or same-sex marriage could all still be law in this country if these issues were put to a majority vote. Fortunately, they are not, because one of the primary functions of the Charter is to protect the rights of minorities from the oppression of the majority.
All of the issues mentioned above involve insider/outsider status, and in each case, the Supreme Court has ruled that minority Canadians (like sex workers, who confound traditional ideas about sexuality and agency and who may face compounding intersectional challenges due to other parts of their identities) should be protected against the desire of the majority to keep certain rights all to themselves.
The rights in question, in this case, are the rights to be safe and secure while conducting work that, while controversial and restricted, is legal. We are talking about people’s safety.
This legislation does not make people safer and it will not help people exit the sex trade; the $20 million promised to help people exit may sound like a lot of money, but to put in context, the Conservative government has spent five times that just on ads for the Economic Action Plan. Toronto Star columnist Tim Harper made that particular contrast and it enrages me every time I think about it. That is the value our government places on sex workers’ lives, lives that they believe are characterized by violence and oppression, lacking in human dignity. They rate one-fifth the value of self-congratulatory propaganda. Ouch.