BCCLA reacts to Bill C36, new sex work legislation

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This week, the federal government made public The Protection of Communities and Exploited Persons Act, a bill drafted in response to the Supreme Court of Canada’s decision in Canada v. Bedford. The BC Civil Liberties Association is deeply disappointed to see a bill put forward that will continue to endanger the safety and security of sex workers by replicating the conditions that existed under Canada’s previous laws concerning sex work and prostitution related offences, which were found to be unconstitutional by the Supreme Court.

Increased safety and dignity for Canadian sex workers must be at the centre of new legislation.  This new bill does not respond to the violations of Charter rights that were outlined in the Bedford decision. It is difficult to imaginehow this new bill will stand up to constitutional scrutiny in light of Bedford. The BCCLA takes the position that the purchase and sale of sexual services between consenting, capable adults should not be a criminal offence. Capable adults should be able to exercise autonomy over their own bodies. As an organization, we believe that only decriminalization and regulation of sex work will afford those involved in sex work the dignity, safety, and autonomy that they deserve. It is our position that criminalizing the sale or purchase of sex will recreate the dangerous conditions which not only precipitated the Supreme Court of Canada’s ruling of unconstitutionality in Bedford v. Canada, but have also ravaged our communities and families.

Bill C-36 seeks to expressly criminalize communicating for the purpose of purchasing sex, and communicating publicly for the purpose of selling sex. The Court, however, ruled in Bedford that “By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risk that they face”.  The only distinction between the new communication provision and the pre-Bedford provision is the addition that it applies only to places or near places which might reasonably be expected to have persons under the age of 18 present. That is: not everywhere, just almost everywhere. It is anticipated that the new provision will operate very much in the same way as the old one.

In addition, this law creates an entirely new offence aimed at advertising sexual services. This provision would make indoor sex work impossible, though the Supreme Court clearly recognized that the ability to work indoors is a key measure for reducing risk for sex workers.  A substantial and important body of evidence demonstrates that criminalizing the purchase of sex does not result in increased safety for sex workers.  When sex workers are focused on avoiding police detection, whether due to their own criminalization or that of their clients, they are less able to engage in activities that mitigate their risks. Displacement to isolated areas, inability to screen clients, inability to hire security staff, and inability to access police protection are the very conditions that led to the Court’s ruling in Bedford.

Canada must commit itself to reducing the risks encountered by sex workers, whether they engage in the work of their choosing, or through necessity. The harms encountered in sex work must be dealt with, but experience has proven that criminalizing sex work does little to either ensure the safety of sex workers, to facilitate exit for those sex workers who desire it, or to improve the conditions of poverty and marginalization that result in people turning to sex work even though they wish to pursue other work.

This bill violates deeply-held and constitutionally-entrenched principles of free expression and autonomy.  Where the Supreme Court’s decision in Bedford cast a ray of hope for improved conditions for Canadian sex workers, this bill has dealt that hope a great blow. This bill has failed to respond appropriately to the Supreme Court’s decision in Bedford, and we are dismayed that the issue will almost certainly need to once again be put before the courts in order to guarantee the rights and safety of vulnerable individuals.

In March of 2014 the BC Civil Liberties Association took part in the Department of Justice’s online public consultation on this issue. Our submission can be found here.