by Kelly Pflug-Back

Justice Minister Peter McKay tabled a new prostitution bill yesterday which Canadian sex workers, allies, and advocacy groups have criticized as unconstitutional and will endanger the physical safety and well being of sex workers.

The legislation in Bill C-36 is seen by many to fly in the face of the Bedford decision of December 20th, 2013, in which the Supreme Court of Canada struck down criminalization of purchasing and living off the avails of prostitution, as well as brothel keeping, on the grounds that these stipulations present additional dangers for vulnerable women.

The new bill prohibits the purchase of sex, materially benefiting from the selling of sex, communicating for the purposes of purchasing and selling sex in areas where persons under the age of 18 may be present, and conflates 'prostitution offences' with existing offences relating to human trafficking. Penalties for all violations will include escalating mandatory minimum fines of $500 to $4,000, for first and subsequent offenses, and can include up to 5 years in jail.

“If clients are criminalized, people are worried about their livelihood,” said Jean McDonald, executive director of the organization Maggie's- Sex Workers in Action. “Criminalizing clients also means that street-based sex workers get pushed out of the strolls [which are established areas known to clients, workers, and police] and into isolated areas,” she continued.

McDonald said that this could be especially dangerous for trans women, since there are established strolls which are known to clients as trans areas. If trans women are working elsewhere, clients could pick them up not knowing that they are trans, and potentially react violently once they find out.

Fallon Cunning, a transsexual sex worker in London, ON said that the new legislation “will impact indoor work, outdoor work, this will impact it all. As someone who works from home, not being able to properly screen clients results in there always being this underlying stress and fear. That prevents me from being able to enjoy the legitimate clientele that I have.”

The section of the bill which criminalizes materially benefiting from the selling of sex also prevents sex workers from hiring drivers and bodyguards, which places them at significantly higher risk of assault and robbery.

"I'm worried that I'll have to go to areas that I'm not used to in order to avoid the cops," said Tammy, a street-based sex worker in Toronto, while Nicole, another street-based sex worker, told Toronto Media Co-op “I need time to see if they [clients] are okay. How can I negotiate prices and condoms if they're worried about a cop catching them?"

The government's decision has come under fire from numerous sex workers, allies, and advocacy groups for conflating consensual sex work with human trafficking. This false equivalency can result in people who have been trafficked or abused becoming further marginalized, said Naomi Sayers, former sex worker and founder of kwetoday.com. “If a client is witness to exploitation, he or she can't go to the police.”

Nikki Thomas, former Executive Director of Sex Professionals of Canada (SPOC), wrote in her recent article 'The Five Fatal Flaws of the Abolitionist Approach' that clients have on numerous occasions assisted her in investigating suspected abuse or coercion in sex work establishments. “By providing me with this information, I was able to relay the name of the sex worker and agency owner to Detective Wendy Leaver, former head of the Special Victims Section of Toronto Police Services’ Sex Crimes Unit, and she was able to intervene and stop the exploitation immediately.”

According to C., a Toronto-based sex worker who requested anonymity, sex workers who solicit online often request references from clients before meeting them, which becomes next to impossible if clients must operate under false identities. “If we are able to request references, it's actually safer than online dating,” she said.

Fears of sex worker safety being compromised under the so-called ‘Nordic Model’ have been further confirmed by a recent study published in the British Medical Journal Open, showing criminalization of clients renders sex workers more vulnerable to direct violence, as well as health risks such as sexual transmitted infections-- a reality which, according to Cunning, looks no different in practise from the criminalization of sex workers themselves.

“We need education that promotes health, safety, and human dignity as opposed to the continued policing of bodies, which is an ongoing form of colonial violence” said Cortney Dakin, a social service provider in London, ON.

“In a society that's free of stigma and criminalization,” said Cunning, “there's no fear of reporting predators, of being tested, or of advertising. Having all of these things out in the open puts a spotlight on anyone who is committing abuse or trafficking people.”

In New Zealand, purchasing and selling sex, as well as brothel keeping and living off the avails of prostitution, have been decriminalized under the 2003 Prostitution Reform Act. Prostitution of minors, as well as coercion of sex workers, are prohibited under the Act. Despite fears of decriminalization resulting in countries becoming prime destinations for international sex trafficking, the last instance of international trafficking reported in New Zealand was in 2001.

“Exploitation happens in many workplaces,” McDonald stated. “The hotel industry, for example, is notorious for it. But no one is pushing for the abolition of other labour industries; they are pushing for better labour laws and the protection of workers.”

According to Sayers, Cunning, and Dakin, criminalizing any aspect of the sex trade also renders sex workers more vulnerable to discrimination in their interactions with social services providers, particularly in terms of child custody and housing. Discrimination in these settings could be especially dangerous for Indigenous women, who already experience disproportionate rates of child apprehension, Sayers commented.

In the face of this bill, many feel that the only option is to continue fighting. McDonald told TMC: “This means we will have to go back to the Supreme Court, and collect more evidence on people being abused and harmed and murdered.”

“One thing that's promising is that this bill is blatantly against the Bedford decision, and blatantly unconstitutional. It will definitely go back to courts” said Bella Clava, a Toronto-based sex worker and harm reduction activist. “Out of this, from coast to coast, we've created a really strong movement. Whatever laws get put in place, we're going to be researching their effects and challenging any negative implications they carry for sex workers. But in the mean time, people are going to die. My friends are going to die, and people who I work in my harm reduction advocacy are going to die. It took almost a decade for the Bedford decision to go through, and how many people died during that time?”