If Canada’s commitments to human rights and health care mean anything, they should mean that no one doing legal work does so under conditions that avoidably endanger their health and well-being.
Yet, this is the reality today for sex workers due to a discriminatory legal regime and the pervasive stigma that shapes the actions of law-enforcement officials, as well as policies and attitudes in health and social systems.
In 2014, the former Harper government passed the Protection of Communities and Exploited Persons Act (PCEPA), which is based on an ideological view of sex work as inherently exploitative and which aims to create conditions that would reduce or end the demand for paid sexual services.
Although the act exempts sex workers from prosecution for benefitting from provision of their own sexual services, it criminalizes nearly all related activities, including buying sexual services; communicating for the purpose of selling sexual services; and facilitating, advertising or receiving compensation related to someone else’s sale of sexual services.*
Because this imposes unjustified and avoidable harms and risks on those who practise this legal work, Canadian sex workers brought a 2021 constitutional challenge, which was dismissed last year by the Ontario Superior Court.
That decision will likely be appealed to the Supreme Court. However, with or without a Supreme Court decision, the law should be changed to take a public-health approach to sex work – one that comprehensively protects sex workers’ health, safety and well-being, as the Canadian Public Health Association urges.
In addition, even before any court appeal is heard, some steps can and should be taken by police as well as health and social-service organizations to protect the rights of sex workers – many of whom are Indigenous, minorities or other disadvantaged people – as part of a larger struggle to protect minority rights in a time of rising bigotry.
PCEPA harms sex workers’ health
Evidence over the past decade shows that PCEPA’s provisions impede sex workers’ capacity to work safely. Sex work is not an intrinsically dangerous way to earn money. Sex workers note that violence is unusual and usually stems from a small subset of clients.
But because PCEPA criminalizes the purchase of and communication around sex, it severely constrains sex workers’ ability to screen clients in advance and negotiate terms of service due to fear of police detection – a problem that more than doubles the likelihood of client violence.
The criminalization of advertising for sexual services further reduces sex workers’ capacity to protect themselves by establishing the terms of services in advance. Moreover, the suppression of online content related to sex work makes it more difficult to mitigate the risk of client violence by using online networks to screen potential clients.
Criminalization also means many sex workers are reluctant to call police for help, which in turn increases the likelihood of experiencing client violence. Indeed, sex workers – particularly Indigenous sex workers – often experience harassment, racism, ridicule, unwarranted intrusion and sometimes physical endangerment from police.
Those who avoid police by relocating to more isolated locations face higher risks of violence and lower access to health services. For migrant sex workers, criminalization and fear of deportation lead to heightened disempowerment and greater risks to their health.
As well, sex workers’ security, access to health services and health outcomes are greatly damaged by stigmatized treatment by police, as well as health and social-service providers.
Stigma is often compounded for sex workers who are migrant, Asian, Indigenous and/or LGBTQ+. Unsurprisingly, many sex workers find that mental and emotional health are the most difficult aspects of their health to sustain.
New Zealand: A better model for sex workers’ well-being
All of these harms could be mitigated by changes to laws and policies.
The benefits that decriminalization would bring for the health and well-being of sex workers in Canada are evident from decades of outcomes in jurisdictions that have fully or mostly decriminalized sex work.
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For instance, New Zealand introduced a new legal framework in 2003 that safeguards the human rights of most sex workers, promotes their welfare and occupational health and prevents exploitation. The experience of the past two decades shows the positive outcomes of these policies.
Although the New Zealand model is imperfect in its continued criminalization of migrant sex workers, Canada is overdue to follow suit by fully decriminalizing sex work.
Recent parliamentary critique and legal challenge to PCEPA
Despite the evidence supporting sex workers’ advocacy for legal reform, there has been a blatant refusal by the federal government to remedy unfair laws and their outcomes.
In 2022, the House of Commons standing committee on justice and human rights conducted a mandated review of PCEPA.
The evidence it gathered led it to call on the federal government to “recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”
The response of then-justice minister David Lametti wholly ignored that call.
Canadian professions and institutions should act now
Immediate action to improve sex workers’ health and well-being can and should be taken now by police, health and social-service bodies.
This should include policies aimed at better serving people who do sex work; training in non-judgmental, trauma-informed and violence-informed care; and training designed and delivered by sex workers to address stigma and increase understanding.
Sex workers should be at the centre of planning for programs and services that support their health and well-being.
In addition, research funding bodies must do better at producing research on sex work to support evidence-based policy recommendations and interventions to meet the full diversity of sex-worker populations and health needs.
Minority rights matter
Today, sex workers may constitute the occupational category whose Charter rights to “life, liberty and security of the person” are the least protected and most actively obstructed.
Amid a rising tide of intolerance, and sometimes violence, against sexual, ethnic and racial minorities, many other equity-deserving populations have cause to worry whether Canada’s laws and institutions will protect their health and well-being. Protecting sex workers’ rights to health and security is part of this larger, urgent struggle to protect minority rights.
The potential Supreme Court of Canada decision – and any subsequent response by the federal government – will be an important bellwether of things to come.
Until then, Canada’s health, social service and police professionals and institutions have it in their power to do much better today in protecting and serving sex workers.
In taking corrective action now, they would give proof that everyone in Canada – regardless of their legal occupation – has the right to life, liberty and security of the person.
Note to readers: This article has been updated to clarify that PCEPA criminalizes benefitting from the provision of sexual services.
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