Andrew Sorfleet
Guest Post

The Legal Situation for Sex Workers in Canada: An Update

Background

In December 2013, the Supreme Court of Canada (Bedford Decision) struck down all three sections of the Criminal Code that outlawed prostitution, on the grounds that the laws violated sex workers' right to security of the person.

In other words, the laws prevented sex workers from employing precautions that would increase their safety on the job. The Court gave the government one year to make new laws.

Enacted in December 2014, The Protection of Communities and Exploited Persons Act (PCEPA) makes it a crime to:

• purchase sex;
• communicate for the purpose of purchasing sex;
• habitually keep the company of or benefit materially from a sex worker, unless you are in a legitimate family or business relationship — provided you can prove that you are not forcing or encouraging the sex worker to sell sex; you are not involved together in a commercial sex enterprise; and you are not providing alcohol or drugs.

Sex workers are prohibited from working or communicating near schools, playgrounds, day-care centres.

Also, it is illegal to advertise sex services provided by anyone but yourself, and your advertising must not explicitly offer sex for sale.

According to Justice Minister Peter Mackay (Sep. 9, 2014)

"Let us be clear about Bill C-36's ultimate objective: that is to reduce the demand for prostitution with a view towards discouraging entry into it, deterring participation in it and ultimately abolishing it to greatest extent possible." ²

2015 Criminal Code of Canada (C-46)

The changes in law enacted by PCEPA (Bill C-36 2014) are now part of the Criminal Code of Canada.

Although Section 210 was struck down by the Bedford Decision, it remains in the Code because "Bawdy House" is still defined as a place that is kept by one or more persons for "the practice of acts of indecency." Acts of indecency include sexual activity involving more than two people, or that is in public view (such as live sex theatre, or possibly swingers clubs and gay bath houses — unless they are registered private clubs for members only.)

Section 213 (Offences in Relation to Offering, Providing or Obtaining Sexual Services for Consideration) replaced the former law, Communicating in a Public Place for the Purpose of Prostitution.

Section 286 (Commodification of Sexual Activity) makes it a new crime to pay for sex. As well, it is now a crime to live with, or regularly be in the company of sex workers (with exceptions for family and landlords etc.).

PCEPA also made changes to Section 164 which outlines rules for search, seizure and forfeiture of materials. The list now includes materials that advertise sexual services. This means police can get a warrant to search your home or business and seize such property as computers and cell phones, if they can show cause to the judge that there are illegal sex service ads.

PCEPA also amended Section 183 (Invasion of Privacy). Police can now get a warrant to intercept private communications, if they can show a judge that there are communications to obtain sexual services. In other words, it is now legal for police to tap sex workers' phones and email accounts in order to find and arrest clients.

(For the full text of the laws, see: Criminal Code of Canada 2015: Sexual Services.)

Consequences of PCEPA

January 21, 2015, in Hamilton, Ontario, the first charges were laid under the new law 286.4 (Advertising Sexual Services) in conjunction with charges that involve a minor (under 18 years). ³

On January 23, second charges for Advertising Sexual Services were laid in Toronto, Ontario for on-line ads also involving a minor. ⁴

On March 25, the Premier of Saskatchewan announced that strip clubs will be banned throughout the province. It has only been a year since Saskatchewan lifted a ban on nude dancing in clubs that served alcohol. According to the Premier Brad Wall:

"Let's make sure we're not allowing for any opportunity for organized crime to increase its footprint or for there ever to be an increase in human trafficking that we know is happening." ⁵

Then, on March 26, Premier Wall announced that massage parlours in Saskatchewan also presented a problem.

"These kinds of businesses involve potential Criminal Code infractions, which are the federal government's responsibility," he said. "Is there more that the province can do? I think there is, in this general area." ⁶

The Province of Saskatchewan is taking direction from the Federal Conservatives' explicit intentions with the new sexual services laws.

According to Bob Dechert, Parliamentary Secretary to the Minister of Justice, House of Commons Debate, June 12, 2014:

"The bill would also criminalize where a person procures another person's prostitution or if the benefit is received in the context of a commercial enterprise that offers sexual services for sale, such as a strip club, a massage parlour, or an escort agency in which prostitution takes place. We know those types of businesses are often run by criminal organizations, such as gangs and the Mafia. That is the kind of behaviour we want to criminalize. It is not what the women who are exploited are doing, but the people who are actually exploiting them."

As you can see, sex workers in Canada face a time of great uncertainty.

In solidarity,

Andrew Sorfleet, President
Triple-X Workers' Solidarity Association of British Columbia

About the Author

Andrew Sorfleet has worked in the sex industry for over a decade and has been a sex workers' rights activist since 1990. He is currently president of the board of Triple-X Workers' Solidarity Association of B.C.

Notes

1. Photos: Vancouver sex trade workers parade – Red Umbrella Rally and March for Sex Work, The Province, June 15, 2014
2. Peter MacKay insists new prostitution bill will protect sex workers: Senate committee kicks off three days of 'pre-study' hearings on proposed law, Canadian Press, September 9, 2014
3. Hamilton police find 15-year-old girl working as an escort: Three charges against 27-year-old woman are first charges in Hamilton under new prostitution laws, CBC News, January 21, 2015
4. New law allows cops to focus on pimps – not hookers, Toronto Sun, February 1, 2015
5. Saskatchewan to make stripping illegal in bars again: Premier Brad Wall says he made a mistake allowing semi-nude dancing in bars, CBC News, March 25, 2015
6. Massage parlours also a concern, Premier Brad Wall says: Similar to strip shows in bars, massage parlours connected to exploitation, premier says, CBC News, March 26, 2015