VANCOUVER—Kerry Porth fondly remembers the day in 2013 when the Supreme Court of Canada made the landmark decision to strike down laws that criminalized doing sex work.

On Dec. 20 of that year, the top court unanimously ruled that criminal laws prohibiting living off the avails of sex work pushed Terri-Jean Bedford and other sex workers into dangerous underground situations in order to do their jobs, and violated their constitutional rights to security of the person.

“The Bedford decision that the Supreme Court made was a unanimous victory for sex workers,” Porth said. “They were recognized as human beings.”

Porth, who exited sex work on Vancouver’s Downtown Eastside in 2004 and has since become a leading activist for sex worker rights, was among those who saw the decision as the gamechanger that would finally afford a marginalized class of workers the same protections as all other working people, including occupational health and safety standards, the ability to collectivize, and maybe, eventually, pensions and sick pay.

Looking back now, her perspective has changed. Porth is dismayed that the Protection of Communities and Exploited Persons Act (PCEPA), passed in 2014 by the Harper government in response to the Bedford decision, seems to do anything but what its name promises.

“I don’t think I’m going to win this fight in my lifetime,” she said in Vancouver last week.

The PCEPA called for the adoption what’s known as the “Nordic model,” which decriminalizes activities performed by sex workers and places the criminal burden on the demand side and on third parties, so that targeting “pimps” and “johns” are targeted by law enforcement. The upshot that it’s legal to sell sex in Canada, but illegal to pay for it or help someone else sell it.

The approach had the support of some feminist groups that argued sex work is inherently exploitative and that human trafficking is an inherent risk in the industry.

New research based on a Vancouver-based survey of sex workers shows that, far from protecting them, the PCEPA has had no impact on the working conditions for the vast majority. And for more than a quarter of the respondents, the law has made it more difficult than ever to access occupational health and safety measures — the same limitation that caused previous prostitution laws to be struck down in the first place.

Sex workers reported that’s because the same forces that pushed them to operate in “underground” and dangerous circumstances prior to 2014 are still present in their work. It’s just that instead of sex workers themselves fearing arrest, it’s the clients and support staff who may be targeted, creating a whole host of new pressures on workers.

“What that does is it creates an environment where violence can foster because essentially anyone who wants to perpetrate violence knows that workers are very unlikely to call police because of fears about criminalization,” said Shira Goldenberg, one of the principal investigators on the study (Kate Shannon is also a principal investigator).

Goldenberg and Sylvia Machat were two of the researchers with the Centre for Gender and Sexual Health Equity who conducted the PCEPA study using data from An Evaluation of Sex Workers’ Health Access, an survey of about 1,000 sex industry workers in the Lower Mainland, which has been going on for a decade. It’s a survey of uncommon breadth and depth for Canadian sex workers.

Of the survey participants, 299 were sex workers who worked both before and after the PCEPA came into effect.

A majority (72.2 per cent) of respondents said the PCEPA didn’t improve their working conditions, while over a quarter reported negative changes.

Machat explained that the effects of the PCEPA vary depending on the category of sex work a person is involved in. There are three categories they use in their research: street-based sex work (where workers operate outside to find clients and negotiate exchanges), informal indoor sex work (where workers set up meetings in hotels or homes) and formal indoor work (where multiple workers operate in registered business spaces like massage parlours or health spas).

For the first two categories, the biggest challenge is the difficulty screening clients.

Given the fear that the police could come knocking, sex workers find themselves making “split-second” decisions about whether or not a client is too risky. And under the PCEPA, the client is incentivized to reveal as little as possible about their identity.

“Having to make those split-second decisions is putting people’s lives and safety at risk,” said Jill Chettiar, a spokesperson for the sex-worker-led advocacy group Sex Workers United Against Violence (SWUAV). “The women in SWUAV talk a lot about their gut instinct but they don’t even have time to do that quick check.”

Porth said the shift of the criminalization burden onto clients has also resulted in some demanding lower prices of sex workers. Some have to make up lost income by agreeing to more dangerous arrangements.

That’s consistent with what Goldenberg and Machat’s study found.

“We do see the reduced ability to screen clients and the reduced access to work spaces and clients,” Machat said. “So I think that what we see there is more likelihood of workers taking on more dangerous clients, which I think is alarming.”

But workers in the third category — those working in massage parlours and spas — have experienced the most negative changes, Machat explained.

Due to concerns about trafficking, migrants in Canada on open work permits aren’t allowed to do sex work. The majority in the survey had legal status in Canada, but even those respondents reported being afraid that brushes with the criminal justice system could impact their status. And under the PCEPA, managers operating formal indoor establishments for sex work are breaking the law.

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“Things like distributing condoms onsite become potential evidence for criminal activity, so there’s less incentive to provide access to those kinds of resources related to health,” Goldenberg said.

Many activities that could promote safety — like workers “spotting” for one another, or having an administrator take identification from potential clients — are also discouraged because third-party involvement in sex work is a crime.

Goldenberg said this incentive structure is evidence of the industry’s having being “singled out” on moral grounds, so that a category of legal workers is barred from getting protections that would be “perfectly reasonable in any other industry.”

“I can’t think of any other type of work where it’s illegal to purchase it but not illegal to sell it, which is the case in sex work right now,” Goldenberg said.

In the long term, Goldenberg said Canada should build a decriminalized environment for sex work.

“What we see from the evidence is that when sex work is decriminalized it actually provides more opportunities to call out and address and prosecute any exploitation in the workplace where it does occur,” she said, citing the laws in New Zealand as an example.

In the meantime, advocates say, the government needs to do more to listen to the concerns of sex workers firsthand. Chettiar said regulatory bodies should work in consultation with sex workers to develop safety standards across the industry.

“Sex workers are the experts,” she said. “This is being seen as a criminal issue and it’s really an occupational health and safety issue.”

Porth said the public opinion about sex work may be slowly shifting.

“When I first started doing lectures or talks with university students I was always challenged about what I was saying,” she said. “And that never happens anymore.”

But she thinks the stigma associated with sex work, and its conflation with human trafficking, is deeply ingrained in the way Canadians think about the industry.

She did sex work in the context of poverty and drug addiction, as she told Canada’s Justice and Human Rights Committee during consultations for the PCEPA (then Bill C-36). She said criminalizing sex work doesn’t “rescue” women in those circumstances, but rather punishes a “symptom” of those systemic problems.

“For me, if you really want to get people out of sex work who are doing it as a last resort, then we need to increase the options for those individuals,” Porth said.

The advocates may find a more sympathetic ear in the Canadian government under Justin Trudeau than they did under Stephen Harper. In a response to questions over email, Justice Department spokesperson Célia Canon said Minister Jody Wilson-Raybould is reviewing the PCEPA.

“It is important to ensure that all of our criminal laws are effective in meeting their objectives, promote public safety and security, and are consistent with our constitutionally protected rights. This is why we are continuing our review of the changes made to our criminal justice system under the previous government,” Canon wrote. She said the ministry has conducted consultations, including with people working in the sex industry.

Porth hopes the government does take action, because the alternatives are unattractive.

“Launching a charter challenge on a large set of very complicated laws is expensive, time consuming, and it would probably take 10 or more years,” she said. “I think a better idea is to work with government, to get government to slow down and really learn about this issue so they can craft something better.”

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