One year after the Supreme Court struck down Canada's former prostitution laws, the federal government's infamous response came into force this past weekend. Across Canada, sex workers and their allies are already mourning the passage of the Protection of Communities and Exploited Persons Act. They know it will make their working conditions even more dangerous than they already are. They know it will contribute to violence and even death.
The Protection of Communities and Exploited Persons Act is premised on a simple idea: If we create enough criminal punishment, we'll eventually get clients to "just say no" to the purchase of sexual services. If we build enough prisons, the story goes, we'll eventually end the demand for sex work altogether. In the process, we'll usher in a new world of gender equality. With the passage of this new legislation, the Conservative government's law-and-order agenda has been reimagined as one that promotes human rights and dignity.
The legislation casts a wide and dangerous net. It targets, among other things, the purchase of sexual services, communicating for the purposes of solicitation near schools, playgrounds and daycares, third parties who receive a material benefit from another person's sex work and advertising.
The legislation also includes $20 million, which was supposed to be used to support individuals in the sex trade. Half is set to go to law enforcement officials. According to the Department of Justice, the other half will be doled out to organizations that "provide or enhance services to support exit strategies for those involved in prostitution." While funding applications aren't due until January 2015, the likely recipients will be organizations that testified in support of the legislation before the House of Commons and Senate committees.
The money would have been better spent launching a national daycare strategy, more affordable housing or increased social assistance.
It didn't have to be this way. When the Supreme Court struck down the former laws last December, it gave the government one year to determine whether it wanted to enact new, constitutionally compliant legislation. Had the government decided to get out the business of criminalizing sex work, the sky wouldn't have fallen. There still would have been a wide array of criminal provisions that could have been used to respond to the important concerns raised by sex workers about violence and exploitation. These include human trafficking, kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, aggravated assault, aggravated sexual assault and a series of gang-related offences.
Had the government decided to get out of the business of criminalizing sex work, however, Canada could have ushered in a new era of human rights and labour protections for sex workers. Canada could have followed New Zealand's lead. Since 2003, New Zealand has decriminalized sex work and developed a new model that prioritizes human rights. The results have been promising. In March 2014, a New Zealand human rights tribunal awarded a sex worker $25,000 in damages for sexual harassment by her employer. In the decision, the tribunal noted that "sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment, especially by the manager or employer at the brothel." This is a world first — a human rights complaint would never have been possible in a criminalized environment.
As they continue to work in the shadows of Canadian criminal law, with no human rights and labour protections in sight, sex workers will continue to experience violence and even death. With nervous clients trying to avoid police detection, street-based sex workers will have little time to screen clients before moving to isolated locations. Indoor sex workers will encounter clients refusing to provide basic personal information, such as their name, out of fear of prosecution. Unable to communicate near schools, playgrounds and daycares, sex workers will face the constant risk of police harassment and arrest. With significant limitations placed on advertising sexual services, sex workers will find it difficult to work in safer, indoor locations. The demand for sex work won't end. But working conditions will become even more dangerous than they already are. And the federal government could have done better.
Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto faculty of law.