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Challenging criminal laws: The right to sell one’s body vs. the right to not be trafficked

Sex workers and their supporters gather outside the Ontario Superior Court during the launch of their constitutional challenge to Canada's sex work laws, on Monday, October 3, 2022. THE CANADIAN PRESS/ Tijana Martin

Sex trafficking versus sex work are two topics intertwined when looking at what challenging the criminal laws in places means for those on both sides of the debate.

A battle is brewing amongst advocates as the Ontario Superior Court hears the Canadian Alliance for Sex Work Law Reform’s case for overturning the Protection of Communities and Exploited Persons Act (PCEPA). Public hearings for the case started on Monday.

PCEPA came into effect in December 2014 to shift the focus of criminalization from those selling their own sexual services to those purchasing and benefiting from others’ sexual services.

The alliance argues that several sections of the criminal code are unconstitutional, and criminalizing advertising sexual services and communicating to buy or sell sexual services violates workers’ Charter rights.

The group argues the laws threaten their health and safety, while advocates supporting human trafficking survivors say the laws around prostitution have helped combat exploitation and target buyers and the exploiters.

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Read more: Canadian sex workers are challenging a law that does them ‘harms’. Here’s what to know

Speaking to Global News about their case late last week, the alliance’s national coordinator, Jenn Clamen, said criminalization forces sex workers into isolation.

“They are forced to not be able to have meaningful communication with clients they are selling sexual services to, information that would be relevant to their health and their safety and their ability to refuse or to consent to sex, access to health and social and legal services,” Clamen said.

“Criminalization also subjects already over-policed and under-protected communities like Indigenous women or Black women, migrant women, trans women to additional profiling and being targeted by police.”

Monica Forrester, an individual applicant in the case who spoke at a Zoom media conference regarding the issue, talked about her experiences as a transgender woman of colour in the sex trade.

Forrester spoke about how she has felt “targeted by police,” and the laws create unsafe situations by not allowing people in the sex trade to hire protection and by restricting how and where they can advertise their services.

“There are so many different things within these laws that really perpetrate violence and unsafe working conditions for so many of my peers that I work with,” Forrester said.

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“When we look at the laws and how to protect us, and police forces that are supposed to be there to support us, they are not doing that. So we have to recognize if we decriminalize these laws, we have those rights to have that protection and have that support in place.”

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Speaking at the same media event, Ellie Ade Kur, a fact witness in the case and sex worker rights activist, said because of criminalization, Black sex workers “are often required to rely on existing networks of other Black sex workers to help and support one another,” which she said leads people to characterize them as “pimps” when working together.

“It’s not just that police fail to act. It’s that police act as aggressors, empowered by harmful laws, and because of that, Black sex workers have had to develop very tight mutual aid networks to support and protect one another,” Ade Kur said.

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A report by the Canadian Centre for Justice and Community Safety Statistics called the Crimes related to the sex trade: Before and after legislative changes in Canada found that once the Protection of Communities and Exploited Personal Act came into effect, fewer women were accused or changed in incidents related to prostitution.

The report showed that 97 per cent fewer women were tried in court for stopping or communicating offences in the five years after the new legislation than in the five years before the change. Far fewer women were also found guilty, and, of those, none were sentenced to custody.

According to the report, the number of women accused under Section 213 fell from 888 in 2010 to just five women accused in Canada in 2019.

The report also showed that the number of men accused in sex-trade-related crimes increased due to the new offence of obtaining sexual services for an adult, leading to men accounting for 93 per cent of individuals accused in sex-trade-related incidents.

Read more: Journey to Justice: From reporting to convictions, the uphill climb for sex trafficking victims

The executive director of the London Abused Women’s Centre, Jennifer Dunn, told Global News that if decriminalizing the sex trade were to happen, it would be harder to hold traffickers accountable.

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“A lot of trafficking in sexual exploitation is really fuelled by organized crime, and so what does that look like if all of a sudden this is all completely decriminalized? I know there are specific laws for trafficking, and this is the law specific to prostitution, but they do work hand in hand at some point,” Dunn said.

“If prostitution is completely decriminalized, it’s going to lead to more issues with sexual exploitation and trafficking, which, really, then we will see an increase in child sexual exploitation as well.”

Dunn said the strategy and laws Canada has in place to address prostitution and sex trafficking are based on an idea called the “equality model,” which she thinks is the best strategy to address exploitation.

“Honestly, I think that the evidence shows that it is working. It does truly protect women who want to sell their own sexual services more than it has ever before, and really it does focus on reducing the demand at the end of the day.

Clamen does acknowledge that the line between sex work and human trafficking is not so cut and dry.

“There are sex workers who defined some of the experiences they have had as having been trafficked, and then they will say in other moments I was doing sex work. So there are not two distinct groups of people; sometimes, those people are the same people. Human trafficking or exploitation are the experiences. They’re not the people; they are things that happen to people.”

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Clamen argues that decriminalizing prostitution would allow for a labour framework to be put in place for labour and occupational health and safety standards.

“As long as sex work is criminalized, workers are discouraged from reporting exploitation because when they report exploitation, it’s often the sex work itself that puts the sex worker in danger of deportation, losing her children, losing a straight job, or having her money taken, whatever it is as evidence.”

Read more: Children for sale: Canada’s youth at the heart of the rising sex trade

Defend Dignity director Glendyne Gerrard argues that getting rid of the legislation would lead to greater exploitation of women, especially those in more vulnerable groups.

Defend Dignity is an organization focused on ending all forms of sexual exploitation in Canada.

“I think the market would explode. I think sex buying would go up, which would then endanger many, often minors,” Gerrard said.

The Government of Ontario revealed its five-year anti-human trafficking strategy in 2020, which reported that the average age for recruitment into sex trafficking is 13 years old.

“I would say that it’s not the laws that make people unsafe, it is those who purchase sex that makes it unsafe. The individuals who choose to purchase sex, that’s where it becomes unsafe, and that’s why I think what the prostitution legislation does here, by criminalizing those who purchase, is actually where the laws should be landing,” Gerrard said.

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