The Conservatives' Bill C-36 made it harder for sex workers to do their job safely—and despite their promises, the Liberals haven't fixed the problem, either

“Am I next? Is he watching me now?”

For years, Sarah De Vries was a sex worker in Vancouver’s now-infamous Downtown Eastside. In her diary, she chronicled her struggles with addiction, as well as the situation in the neighbourhood, in which police were either ever-present—arresting drug users and sex workers wherever they congregated, or belittling them for their profession—or simply nowhere to be found. Still, she had plans to get her life together and get out of the neighbourhood. But as she wrote in her diary, she worried she’d never get the chance.

“So many women, so many I never even knew about that are missing in action,” she wrote in that same entry, in December 1995. “It’s getting to be a daily part of life. That’s sad.”

De Vries disappeared three years later. Police believe that she was murdered on Robert Pickton’s farm, east of the city. She was one of the many women whose disappearances remain, on paper, unsolved; while Pickton was charged with her death, her case was eventually stayed.

De Vries’s journal, read aloud by her sister at a commission of inquiry into Vancouver’s missing women, was cited directly in the commission’s final report. Wally Oppal, who headed up that commission, would describe the neighbourhood as a “zone bereft of justice and outside the rule of law” where, for decades, the murder of sex workers was just a “daily part of life.”

But surprisingly— incredibly—there’s been good news, recently: There hasn’t been a recorded murder of a sex worker in Vancouver in nearly a decade.

“It has been a long hell of a journey,” says Susan Davis, the director of the B.C. Coalition of Experiential Communities, who has worked as a sex worker in Vancouver for more than three decades.

The changes can be traced back to 2012, when Vancouver police drafted a new policing strategy that completely overhauled how they deal with sex workers, and the sex trade more broadly. The new strategy was the direct result of the commission of inquiry, the one headed by Oppal and informed by De Vries’ diary. These guidelines—which outline how police should “use discretion” in dealing with complaints regarding prostitutions, has meant that in Vancouver, sex work is effectively decriminalized.

“No sex workers on the street have been arrested in Vancouver on the street in a very long time,” Davis says. “The john stings, as they’re called, do not occur here either.” It’s not perfect, she says—but it’s been a success.

But Vancouver is a lone exception to the rule in Canada. Go outside Metro Vancouver—where police, by their own policy, are largely unconcerned with enforcing Canada’s laws around sex work—and it’s a totally different scenario.

Across Canada, sex workers are still regularly being charged with crimes because of their profession. Their clients, too, are being targeted by police. A safe, indoors working environment is inaccessible to many women and men who work in the trade. And although statistical reporting is sparse, violence against sex workers has certainly not stopped in the rest of Canada like it largely has in Vancouver. Indeed, in 2017 alone, there were the murders of Sisi Thibert, a transgender sex worker in Montreal; Victoria Head, a sex worker and a mother from St. John’s; and Josie Glenn, a 26-year-old from London.

According to a research project conducted by York University masters student Arlene Jane Pitts in 2015, sex workers have in recent years “not witnessed any decrease in police harassment and instead stated it had increased,” largely pointing to enforcement of other criminal prohibitions, like drug possession.

Pitts’s research, comprised of in-depth interviews with six street-involved sex workers, suggests that Canada’s new laws—ones that supposedly decriminalized sex work, complying with a major Supreme Court ruling on the matter—have only made things worse.

That legislation, Bill C-36, came into effect in 2014 under Stephen Harper’s Conservative government, and it was opposed by all opposition parties at the time, including Justin Trudeau’s Liberals, who contended that the legislation was unconstitutional and failed to comply with that Supreme Court ruling. During the 2015 federal election campaign, Trudeau vowed to undo or fix various criminal justice reforms brought in by his predecessor, painting the Tories’ tough-on-crime agenda as heartless and damaging. And when they won, they affirmed that work would be under way on these issues. “I definitely am committed to reviewing the prostitution laws, and sitting down with my officials to assess the best options, and with those they affect directly,” Justice Minister Jody Wilson-Raybould told the Tyee in 2015, shortly after her appointment to cabinet.

But now—three years after the Liberals won a majority government, four years after C-36 came into force, five years after the Supreme Court ruled that Canada’s long-standing prostitution laws were unconstitutional, and six years after shifts in policing strategy started producing meaningful change in Vancouver—any plans for reform appear to have stalled, despite government consultations about a year ago. And now, with just a year left before the next election, there is scant time left to introduce new legislation.

In short, sex workers feel like they’ve been forgotten—again. “It’s very difficult to be on the outside with people talking all about you, with people making decisions about your life, and having no say whatsoever,” says Davis.

After years of patience with the Liberals, sex workers are beginning to speak out again, frustrated by the lack of outcome from the consultations. A constitutional challenge to the Harper-era laws is facing a Charter challenge in a London, Ont. courtroom, which promises to extend into years of further legal wrangling. The Pivot Legal Society, an intervenor in the Bedford case, told the National Post in January that it was considering another challenge.

“We always have to force our way to the table,” Davis says.

Things were different in 2013, when sex workers in Canada were optimistic. In what is now known as the Bedford ruling, the Supreme Court ruled in favour of a coalition of sex workers in declaring the existing criminal regime around sex work unconstitutional, striking down the previous criminal prohibitions as directly and indirectly harmful to sex workers, and concluding that any societal benefit that may come from ending the sex trade cannot be comparable to the damage caused to sex workers by criminalization. The country’s highest court gave Ottawa a one-year grace period to revise the laws, if they so wished; if they did nothing, as many sex work advocacy groups recommended, sex work in Canada would be decriminalized and unregulated at the national level, akin to what is happening in Vancouver.

While research is limited, some peer-review studies back up the assertion that decriminalization does reduce violence and improve health outcomes for sex workers. A 2016 study, published in peer-reviewed medical journal The Lancet, studied the correlation between HIV transmission rates amongst sex workers and government policies on the sex trade.

Controlling for a variety of other factors, the researchers write that “countries which have legalized some aspects of sex work have significantly lower HIV prevalence among sex workers than those which have not.”

Real-world examples, including Vancouver, appear to be evidence to that end. New Zealand decriminalized sex work more than a decade ago, with a 2012 parliamentary report from that country concluding, despite setbacks, “key evidence indicates that the decriminalization of prostitution has impacted favourably on various aspects of sex work for many.”

“Decriminalization is the only way forward,” Davis says.

Harper’s Conservative government had other ideas. It was after the Bedford ruling that the government brought in Bill C-36, an act which sought to comply with the letter of Bedford by criminalizing not the workers themselves, but their clients, which is generally referred to as the Nordic Model, so named after countries like Iceland and Sweden that have moved to criminalize the purchasing of sex work. The model aims to support the women and men of the sex trade, without putting their safety in jeopardy.

MacKay stressed the Conservative government’s solution would be a made-in-Canada approach, but it took inspiration from that model, adding a section to the Criminal Code which punishes purchasing sex work with a maximum penalty of five years in prison. And it did produce some change: In 2015, not long after the new legislation came into effect, police in Cape Breton arrested 27 men in a prostitution sweet they dubbed “John B Gone.” Police in Edmonton have run similar stings with some regularity. Other police forces across the country may be running similar operations, although public reporting on these operations is spotty, and can often be lumped in with operations to break up human trafficking rings.

But the made-in-Canada portion of the law goes beyond simply criminalizing the purchasing of sex. Bill C-36, among other things, criminalizes advertising someone’s sexual services, or accepting money to place such an ad, as well as profiting from someone’s sexual services. Those prohibitions technically exempt sex workers and some direct staff they may hire. But the bill also criminalizes communicating for the purposes of prostitution anywhere next to a schoolground, playground, or daycare, with a maximum penalty of six months in prison. Those conditions cover, of course, wide swaths of urban Canada.

Monica Forrester, who works at Maggie’s, a Toronto-based outreach and advocacy group for sex workers, says C-36 has made life even harder for Canadian sex workers. The law’s prohibition on advertisements have made it “impossible” for self-employed workers who operate out of their own homes, she says. Workers who look for clients on the street, meanwhile—many of whom are “survival” sex workers, meaning they are often working in the trade out of necessity—have had to deal with johns afraid of being “targeted and criminalized” because they are seeking out sex workers.

“What have these new laws done to protect sex workers?” Forrester asked. “Nothing.”

Meanwhile, despite their campaign rhetoric about Bill C-36, the Liberals have yet to follow through with their promised reforms. When Maclean’s requested an interview with the justice minister over her government’s plans to fix the legislation, her office refused. Asked why the minister was unwilling to speak to the issue, her director of communications, David Taylor, wrote simply: “Not in the mandate letter. Not in the platform.”

Instead, the Department of Justice wrote a statement, telling Maclean’s that “this issue is challenging, but it is incredibly important and as such, it is something our government is committed to continue working on.” The justice minister’s office did confirm they held consultations on the law, but there has been no clear outcome or public report from those meetings. They provided no specifics, no timeline, and no commitment to follow through on their promise for a legislative fix. Davis, who was a part of those consultations, was encouraged by the government’s willingness to listen, but says she has not received any update or follow-up from Ottawa in the years since.

This inaction has had real-world impact. In the three years since Bill C-36 has come into force, the statistics show that prosecution for prostitution offences have slowed significantly, but they’ve not stopped. From 2015 to 2017, according to Statistics Canada, 166 people have been charged with prostitution-related offences, with most facing charges for communicating for the purposes of sex work or blocking traffic in order to communicate for sex work, a law that was not part of the Supreme Court challenge. For the sake of comparison, more than 2,000 people were charged with prostitution-related offences in 2010 alone.

But the statistics may not be telling the whole story. Many sex workers have said turning the criminal focus onto the johns means they have been more skittish to purchase sex, and thus have required increasing discretion. That makes screening clients hard, and pushes sex workers, especially those most vulnerable, further into the shadows.

And things have gotten even harder for sex workers worldwide recently, as U.S. law enforcement recently moved to shut down sites like Backpage and the personals section of Craigslist. A new package of laws, which purport to take aim at human trafficking, has made operating those websites virtually impossible. Without those platforms, screening clients is all the more difficult.

“Until the community is decriminalized, how are we to freely associate and ensure safety and work?” Davis asked.

When I spoke to Davis, she was fatalistic about why sex workers have had so few political victories.

“In the end, it’s political gold for the Conservatives,” she says. As for Trudeau? “I understand why the Liberals are reluctant to go down this road.” In other words: Decriminalizing sex work doesn’t win many votes. Cracking down on it does.

“We need somebody to have the courage to do the right thing,” she says. But she isn’t optimistic that somebody is coming.

Even though Trudeau and his justice minister had endorsed changes to the laws brought in under C-36, his party nevertheless endorsed the idea underpinning the legislation, the Nordic model; their concerns were with the implementation. This, despite the fact that Liberal Party members, in April, voted to endorse a resolution calling on the government, their own party, to decriminalize sex work. Party leadership has not responded to it.

While one might expect the NDP to be the voice for decriminalization in this debate, the party is similarly unmoored in terms of specifics on the matter. Their membership, too, has tried to bring forward resolutions calling for the decriminalization of sex work, but the party has kiboshed efforts to actually have those resolutions adopted.

Maclean’s asked a spokesperson for leader Jagmeet Singh whether the party had adopted a specific position on sex work, but did not receive a reply.

Ultimately, sex workers don’t get to write the law in Canada—they just have to grapple with it.

“Sex workers are resilient and resourceful,” Forrester says. Sex workers, she adds, will look out for one another, even if the government won’t.

“And that will continue as long there’s a demand for sexual services in this business.”

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