Angela Campbell

Sex work, security of the person and the Supreme Court of Canada

Criminalizing sex work increases rather than reduces harm

The Supreme Court of Canada will hear arguments on Thursday about whether criminalizing activities associated with sex work violates Canada's Charter of Rights and Freedoms. Some voices will be conspicuously absent from this hearing. The court denied various sex worker activist groups — such as Maggie's in Toronto — permission to intervene and advance arguments. But even without the presence of such groups, the record before the court is compelling enough for it to strike down the challenged laws. Doing so would be a crucial step toward ensuring sex workers' personal security, a goal that is at the core of the criminal prohibitions in question.

The sale of sex has never itself been illegal in Canada. Instead, our criminal law targets activities surrounding the sex trade. Notably, the Criminal Code bans keeping or working in brothels, communicating for prostitution, or living from its proceeds. Together these prohibitions make it impossible to carry out sex work legally.

Canada's sex work prohibitions have deep roots. They have formed part of our criminal law since before or shortly after Confederation. The Supreme Court upheld the validity of some of these prohibitions in 1990. That case focused on sex workers' rights to freedom of expression and liberty.

Given this history, is the time opportune for the Supreme Court to revisit and strike down the Criminal Code's prohibitions on sex work? The evidence central to this litigation suggests an affirmative answer.

The legal slant of this week's case is different from what the Supreme Court heard nearly 25 years ago. It foregrounds sex workers' constitutional right to personal security. This is critical. Legislative debates on sex work have consistently focused on the security interests of women. From these debates, it is evident that Canada's sex work prohibitions are aimed at protecting sex workers — especially female sex workers — from being "victimized" or "preyed upon."

As the Supreme Court will hear, a legal approach premised on the criminal law severely thwarts the objective of safeguarding sex workers' personal security. A robust body of evidence demonstrates that criminalizing sex work increases rather than reduces harm. More precisely, criminalization aggravates the dangers and risks to which sex workers — particularly those who are women and transgender — are exposed.

Criminalization drives sex work to hidden and dangerous sites. With a view to evading criminal charges and social stigma, sex workers operate independently and clandestinely. They do so at their peril. Just as sex workers pass unseen and unnoticed, so do the many instances of violence perpetrated against them.

Criminal prohibitions also constrain sex workers' access to social and medical support and to legal remedies for abuse. Seeking out such resources risks triggering the stark economic, social and legal consequences of exposure as a sex worker.

The disastrous effects of our current legal approach to sex work emerge from a recent Commission of Inquiry Report from British Columbia. The report investigates the serial disappearance and murder of 67 women. Many of them were aboriginal. Most had connections to the sex trade in Vancouver's Downtown Eastside. This report catalogues the inertia and indifference that public actors of all ranks exhibited when confronted with the challenge of preventing, investigating and prosecuting the harms visited upon these women.

Decriminalizing activities connected to sex work promises to alleviate the risks to which sex workers are exposed. It can allow them to collaborate, to move their work to less obscure and dangerous sites, and to seek support. If, as historical and contemporary parliamentary debates indicate, sex workers' personal security is central to legislative concerns, it follows that criminalization — which aggravates the dangers of sex work — is unjustified and misguided.

That being said, Parliament is unlikely to reform the law without judicial involvement. Sex workers are socially and economically marginalized and have limited political influence. Their lobbying efforts will likely fail in the face of a majority government intent on using the criminal law for moralistic purposes while disregarding the empirical evidence of its effects.

Reconfiguring the law governing sex work therefore depends on a Supreme Court ruling that strikes down current prohibitions. This would be an essential first step toward a legal approach that is reasonably linked to our elected lawmakers' proclaimed goal of protecting sex workers' right to personal security.

— Angela Campbell is a professor at McGill University's Faculty of Law and the author of the forthcoming book, Sister Wives, Surrogates and Sex Workers: Outlaws By Choice?