The Canadian Alliance for Sex Work Law Reform (CASWLR) is challenging the constitutionality of the rights of sex worker-related criminal offences in Canada in hopes of repealing the Protection of Communities and Exploited Persons Act (PCEPA), with the first public hearing beginning Monday at the Ontario Superior Court.
The alliance, which consists of 25 sex worker-led groups representing thousands of sex workers across the country, as well as six individual applicants, launched the court case in March 2021.
Jenn Clamen, the national coordinator of CASWLR, said this is the first constitutional challenge to PCEPA provisions initiated by sex workers, and the first to challenge all the provisions related to sex work.
“The number of people who’ve come together to do this and the diversity of sex workers involved in the case is a really strong evidentiary record that we’re bringing forward about the harms of PCEPA,” said Clamen.
Clamen said workers involved this cases experience “all kinds of realities.”
“We have workers who identify as having experienced trafficking, some who experienced robbery and sexual assault, and they’re talking about what that means in the context of their work,” said Clamen, adding that the problem doesn’t lies with sex work, but the criminalization of it.
What is the Protection of Communities and Exploited Persons Act?
PCEPA became enshrined in law under former prime minister Stephen Harper’s Conservative government in 2014. The legislation says prostitution is “a form of sexual exploitation that disproportionately impacts on women and girls,” according to the Department of Justice.
The law criminalizes the purchasing of sex but decriminalizes the sale of sexual services. Every time a transaction for sex work takes place, an offence is committed by the purchaser, the former Conservative government said.
The act also criminalizes communicating to sell sexual services in public, communicating to purchase sexual services in any context, facilitating or receiving a benefit related to the purchase of someone else’s sexual services, and advertising sexual services.
However, Clamen said the message from the government around the decriminalization of sex workers and the criminalization of clients is actually “inaccurate.”
“It is something that the government said they were doing, but if you look at the provisions, that’s actually not what the provisions say,” said Clamen.
She said section 213 in the Criminal Code, which prohibits communication for the sale of sexual services, directly criminalizes sex workers.
“When you criminalize the purchase of sex, sexual services, you are putting sex workers in a context of criminalization at all times,” said Clamen.
In a statement to Global News, a spokesperson for Justice Minister David Lametti said the Attorney General of Canada (AGC) is providing his arguments in court.
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“Minister Lametti will always work to ensure that our criminal laws effectively meet their objectives, keep all Canadians safe, and are consistent with the Charter of Rights and Freedoms,” it reads.
“With respect to the current laws, the five-year parliamentary review of the former Bill C-36 was an appropriate forum for parliamentarians to examine the full range of effects that this legislation has had since its coming into force,” said the spokesperson, adding that committee members have heard different perspectives from experts, advocacy groups, and community partners — including sex workers.
Lametti is reviewing the Justice Committee findings and recommendations and the Canadian government will respond to the committee’s report as soon as possible, said the spokesperson.
“He remains committed to building a society where everyone has equal rights and opportunities,” said the spokesperson.
Why is CASLR Sex taking the feds to court?
At the time, the Liberals voted against Bill C-36 and promised to reform the law when they formed government in 2015.
But advocates say the Liberals are not fulling their promise.
Sandra Wesley, executive director of Montreal-based sex workers support and advocacy group Stella, said even though the Liberals have the on-the-record position that they are in favour of decriminalizing sex work, they made it very clear that they had no intention of moving forward with this promise.
With that, Wesley said “it was a no brainer” for the alliance to launch a constitutional challenge — they’re left with no options.
“We don’t want to be back in court. It’s a huge investment of time, resources and energy from our community, but it’s the only path that we have right now for full decriminalization, and it’s urgent because women are experiencing violence and dying,” said Wesley.
According to Statistics Canada, before the enactment of the PCEPA in 2014, rates of police-reported crime related to the sex trade in Canada had been in steady decline since a law was passed in 1985 barring public communications for the purposes of sex trade.
Between 2010 and 2019, the number of police-reported crimes related to the sex trade decreased by 55 per cent from 2,940 in 2010, to 795 cases in 2015 and then rose to 1,298 in 2019, Statistics Canada shows.
Although statistics show police-reported incidents are declining, the decrease in these numbers reflects how the 2015 law has created a huge barrier for sex workers, said Ellen Lam, executive director of Butterfly, an advocacy organization for Asian and migrant sex workers.
Lam said the criminalization of third parties in the sex trade is also harmful as many migrant sex workers with language barriers often rely on their colleagues to communicate with their client on behalf of them.
“A sex worker who didn’t speak English may have retired sex workers or other sex workers to help them to answer the phone and to communicate with the client, but the risk of being charged makes it hard for them to do it.”
Clamen said the violence that sex workers face is the opposite of what the number of police-reported incidents suggests.
“It is most definitely not because workers are experiencing less crimes against them, it’s because sex workers don’t trust police,” she said.
Clamen said she hopes people can set aside their moral ideology as the trial unfolds.
“Despite what people might think about sex work, these are casualties of criminal law and that sex workers themselves and the Act is not demonstrated to be protective,” said Clamen. “In fact, when sex workers do experience violence, it’s not these laws that are actually helping to address that violence.”