Law V. Lust
Canada’s new prostitution act is supposed to keep workers safe, but many in the profession say it puts them in danger. As Arielle Piat-Sauvé reports, the fight to sell sex safely is far from over.
VALERIE SCOTT KNOWS ALL ABOUT SEX. After all, she has spent decades of her fifty-seven years selling it. Sitting in the living room of her east-end Toronto apartment, she chain-smokes cigarettes while sifting through court documents spread across her cluttered dining room and coffee tables. Out her window, high-rises stretch across the city. In those buildings littering the skyline, countless people are having sex. Some of them are paying for it. And Scott has been fighting for nearly thirty years to ensure that they can keep doing so. She is at a critical juncture in her effort to forge a future for the world’s oldest profession.
It was four months after the December 2013 ruling in Canada v. Bedford, when the Supreme Court of Canada struck down the country’s existing prostitution laws. Although prostitution itself was never illegal in Canada, Scott—along with sex workers Terri-Jean Bedford and Amy Lebovitch—challenged the constitutionality of three prostitution provisions, arguing that the laws violated sex workers’ human right to security of the persons under Section 7 of the Canadian Charter of Rights and Freedoms. These laws included the “communicating law,” which prohibited sex workers from engaging in a public space for the purpose of solicitation; the “bawdy house law,” which made it illegal for sex workers to see clients on a regular basis at indoor locations; and the “living off the avails of prostitution law,” which meant anyone working for a sex worker, such as a driver or security guard, could face criminal charges.
After a seven-year challenge, the court’s ruling seemed like a surreal victory. “I kept thinking this couldn’t be real. How could we get a favourable decision?” says Scott, who is the creator and legal coordinator of advocacy organization Sex Professionals of Canada. The federal government was given one year to either introduce new legislation or decriminalize prostitution.
Scott and her peers were actively lobbying the government to follow New Zealand’s example; the nation decriminalized sex work in 2003. Under decriminalization, clients can pay consenting adults for sexual services. Municipalities can create zoning bylaws and regulate advertising. A 2008 review of the New Zealand law found that, since decriminalization, workers are less isolated, able to work together and have a more positive relationship with the police.
But the Canadian government opted to follow Sweden’s so-called Nordic model of criminalizing the purchase of sex—a decision that left many sex workers feeling left out of the conversation. On June 4, 2014, Minister of Justice Peter MacKay tabled Bill C-36, the Protection of Communities and Exploited Persons Act. “No model that involves full decriminalization or legalization will ever make prostitution a safe endeavour,” MacKay said in Parliament. “There will always be an inherent danger in this degrading activity.” On December 6, 2014, Bill C-36 became law.
For the first time in history, the purchase of sex in Canada is criminalized. Under C-36, it is not illegal for sex workers to sell sex, but it is illegal for clients to purchase their sexual services—a catch-22 intended to end the cycle of demand. “The government has shifted the focus to the johns and created a legislative regime that assumes two things: that all johns are predatory and that all sex workers are vulnerable and exploited. Those are the two new issues,” says Alan Young, the Osgoode Hall Law School professor who challenged the old laws in the Bedford case. Scott has a different way of explaining the change: clients can’t legally communicate consent during their transaction. “We are raping our clients, but they are paying us to rape them,” she says.
The old communicating law was reintroduced, stating that sex workers can’t communicate with clients in areas close to a school, daycare or playground—although the actual distances aren’t specified. Anyone who receives a material or financial benefitfrom sex workers can also be charged, except those who have a “legitimate living arrangement” with the worker. And finally, the legislation prohibits third parties from advertising sexual services, but allows sex workers to do it themselves—another first in Canada.
Bill C-36 was created with the purported purpose of protecting sex workers, but the very people it aims to protect say it will create a more dangerous and precarious working environment. “They finally listened to me, and now they are kicking me in the head,” Scott says. “[According to the government] We are too damaged to know what’s right and wrong, and they are going to save us.”
JULIE GRANT felt the effects of Bill C-36 even before it became law. In November 2014, the Toronto escort agency where she had worked for ten years told her that it would be shutting down due to the incoming legislation—the agency couldn’t survive both the advertising ban and the provision prohibiting individuals from financially benefitting from sex workers. “The owner said she couldn’t take the legal risks as she believed they would be doing stings at some point in 2015,” Grant says. Under the old legislation, escort agencies could technically be charged for living off the avails of prostitution. However, this wasn’t always enforced unless someone made a complaint to the police. With the new legislation, many agencies and sex workers fear the government is trying to prove a point and will put the new law to work. When Grant’s agency shut down, her former boss suggested she help other sex workers find clients. “She was hoping escorts like myself would help others who had no internet access to advertise, but it’s illegal for me to place another escort’s ad,” says Grant.
C-36 complicates things for the publications that run escort ads. “We are sex-positive and we have always been supportive of the idea that people have a right to their own sexuality,” says Alice Klein, co-founder of Toronto’s Now magazine. “There was just no ground from an ethical point of view to discriminate and say somehow that was a category of business that was absolutely beyond the pale.”
In 1990, Now was charged for those classifieds under the former law for communicating with the purpose of solicitation. “It was obviously very poor form on the part of the police to try to shut down a vehicle of independent journalism and free expression,” says Klein. The charges were eventually withdrawn and Now continued to run sex ads in its classified section. It was through this fight that Klein met Scott and the two began working together, going over the legislation.
When Bill C-36 was first tabled in June 2014, Klein sought legal consultation from Young as a pre-emptive measure. He recommended that the magazine transition their business to comply with their understanding of what the law says. “We are asking our advertisers to assure us that they are independent workers who are submitting ads on their own behalf,” says Klein. Though it is still difficult to prove that sex workers are themselves posting the ads and that Now is in compliance with the law, Klein worries that the police could raid the office any day.
This ban on third-party advertising is meant to dissuade pimps and traffickers from exploiting workers. But often, the agencies, friends or colleagues sex workers turn to to post their advertisements also keep them safe.
With the agency shuttered, Grant started to feel differently about her own security—after all, she had worked with them for most of her career. The agency had facilitated the screening process and prided itself on maintaining a list of clients who qualify as “bad dates” (potentially dangerous people or time wasters who don’t show up to appointments) that went back ten years. “The screening was incredible and that’s why I started with them in the first place,” she says. “No individual has the screening ability of a long-standing agency.” The company also dealt with the logistics by managing escorts’ bookings and schedules and provided them with drivers who brought them to their out-call locations such as hotels and waited for them until their date was over. Almost overnight, all of those support services disappeared.
Other escort agencies across the country are also choosing to shut down, while some are rebranding instead. According to a 2014 Now interview with the owner of Cupid’s Escorts, the Toronto agency, established in 2001, decided to pivot their business model. Instead of sex, the agency now sells intimacy and companionship. Nearly-nude photos on the website were replaced by images of women in cocktail dresses and the agency no longer provides condoms. Kyle Kirkup, a Toronto-based criminal law expert who testified at the Bill C-36 committee hearings last summer, says decisions like this are troubling from a public health standpoint. “We want people to be practicing safe sex,” he says. Michelle Cade, now independent, worked at Cupid’s a year and a half ago. She views her former agency’s rebranding as a game of semantics. “You are now paying for our time. What we do during those hours is anyone’s guess,” she says. While Cupid’s pre-emptive move gained attention, other agencies across the country have maintained their websites and advertising of escorts. Still, the possibility of being raided by police is very real. “I think if you are the owner of an escort agency, every day there is a risk that the police are going to show up and charge,” says Kirkup.
When her agency closed shop, Grant transitioned to independent sex work. She was able to hire her own driver and bring along many of her regular clients. But she now has to deal with clients directly and provide her real phone number—something she thinks could compromise her safety and identity. And because some newspapers are refusing to print her ads even though she places them herself, she has seen a drop in her income. “I just closed a bank account because the fees were going to eat the $200 I had left in it,” she says. “I am looking at renting out part of my place to try to pay the bills.”
As the executive-at-large at Sex Professionals of Canada, Grant knows that her personal experience is not out of the ordinary. She receives calls twenty-four hours a day from people across the country expressing their concerns about losing clients and not being able to make ends meet. “We are losing income like crazy and people are facing this wall of poverty that they had escaped in large part because of sex work,” she says. “This law forces people in the sex trade to work secretly, independently from each other and untraceably.”
BILL C-36 CHIPS AWAY at the one element that was allowing sex workers to survive financially: their clients. Sex workers can sell sex, but clients can’t buy it. Men and women can work indoors, but it’s illegal for clients to come over. “I don’t know how you are supposed to install a safe indoor workspace when you can’t tell anyone you are working there,” says Katrina Pacey, executive director of Vancouver’s Pivot Legal Society, who also served as an intervener in the Bedford case. These factors can force sex workers to make riskier decisions.
Young senses that out of desperation and faced with a lack of options, many workers will return to street-level prostitution to find clients—a strategy that is inherently more dangerous. A 1997 Statistics Canada report found that in 1995, four in ten incidents of procurement in street prostitution involved another crime—half of the time, it was a sexual assault or another form of assault. Since then, sex work has repeatedly been listed as a risky occupation.
But not all workers have gone to the streets—or have noticed major changes since the passing of C-36. Rebecca Richardson, a twenty-seven-year-old PhD student at the University of Toronto and independent sex worker, says that things have mostly been business as usual since the law passed—she doesn’t think that police will spend time arresting johns as they simply don’t have the resources. But she has seen a negative change in the screening process for independent workers. “The only thing that has an impact on the working women I know and myself is that the criminalizing of clients means people are scared to share their personal information,” she says. Put simply, many workers now struggle to obtain screening information they require for security and assurance.
Mark* is thirty-five, a lawyer, and married father of two. He has also been seeing sex workers on a regular basis since the age of seventeen, and is one of Richardson’s clients. He says that C-36 misconstrues the reality of who johns are in order to bolster a political agenda. “The majority of clients are either married and unfulfilled, or single and lonely,” he says. “They aren’t bad guys, and they aren’t doing a bad thing.” He remembers hearing some whispers of concerns within the client community in the lead up to last December, but he never worried that he would be a potential police target. “Relax, Chicken Little. Nothing’s going to change,” he says. “I’m more afraid of being caught by my wife than by the police.”
But more police crackdowns may be inevitable in the future. The government has pledged $20 million in funding over five years to support the new bill. Half is supposed to be going to law enforcement (leaving some sex workers concerned about an increase in raids and sting operations), while the rest is expected to go to prostitution abolitionist groups that are in favour of the legislation and want to see women exit the industry, although no specific exit strategies have been discussed as of now.
The anticipation has many sex workers worried. Lebovitch wouldn’t be surprised if the funds are used to conduct the same sort of sweeps that workers saw under the old laws: before big events, the police will target street workers. “There is still this idea in the legislation that we are not autonomous people who are working like everyone else,” she says. “But I don’t get it, it’s human rights. People are having their rights violated.”
THERE IS A FUNDAMENTAL disagreement on how to best protect the men and women involved in sex work. On one side, you have the Grants, the Youngs and the Scotts who say that decriminalization of sex work is the only way to ensure safety and security; that opening the industry as a legitimate business with proper oversight, along with targeted laws against violent behaviours, will help chase out the exploiters and end the violence. “We don’t ban marriage because domestic violence exists,” says Pacey, who has worked with women in Vancouver’s Downtown Eastside, an area with high levels of sex work, since 2001. “Instead, we make sure that we are there for women who are victims of violence in the context of their relationship.” They argue that the Criminal Code already has four statutes dealing with human trafficking, as well as provisions for underage prostitution—crimes that they say need to be differentiated from voluntary sex work.
On the other side, you have people saying that sex work is inherently violent and degrading, that its mere existence means that workers will never be safe. And this belief doesn’t only come from those who have never been involved in the industry. “It was never the laws that beat, raped and killed me and my friends—it was men,” says sex worker-turned-activist Trisha Baptie. Working at the corner of Franklin and Salsbury in Vancouver’s Downtown Eastside for more than a decade, Baptie experienced violence and abuse from clients, including one incident where a man hit her with a crowbar and she ended up in the hospital.
Baptie exited the industry in 2001 after getting help from an outreach worker. She then started anti-prostitution group Formerly Exploited Voices Now Educating (better known as EVE). Baptie is happy with most of the new legislation, especially the language in the law’s preamble that emphasizes the exploitation and violence that she feels is inherent in prostitution. But she does disagree with the government maintaining an updated version of the communicating law, which effectively criminalizes street-based sex workers.
Anti-prostitution groups are now taking their fight further, to the root of what they say is a larger societal problem: that men feel the need to engage in the commodification of women, whether that is seen through the purchase of sex or through women being exploited in pornography. Baptie also wants to see governments, both federal and provincial, do more to help women avoid prostitution in the first place, or safely exit sex work after they start. However, she says that the $20 million in funding provided by the government isn’t enough to achieve these goals.
THE NEW LEGISLATION, created with the purpose of protecting sex workers, has yet to be enforced on its own. “It’s an odd situation to be in where you have a real significant change in the law, without a real idea whether it is going to change anything,” says Young. “But you know that it doesn’t make the situation any better for sex workers.” Some say that Bill C-36 exists to serve a symbolic purpose. “Even though this law is supposed to focus on sex workers’ safety, it’s all about advancing an ideological framework,” says Robyn Maynard, an outreach worker at Montreal sex worker advocacy group Stella, l’amie de Maimie. Members of Canada’s legal community, including Young and Kirkup, also say that the law was written to target and appease the Conservative Party’s core base, mixing individual moral values into the country’s legislation. “It’s a game of cynical politics,” says Kirkup. “They lost the battle on same-sex marriage, they lost the battle on abortion but they are really going to go for sex workers.”
There was some hope that the Ontario government would intervene and review the constitutionality of the legislation. But in April 2015, upon the Ontario attorney general’s recommendations, Premier Kathleen Wynne stated that there was “no clear unconstitutionality” in the law. It appears that going forward, the only way to strike down C-36 is to build a brand new constitutional challenge. The last challenge took seven years to go from the Ontario Superior Court of Justice to the Supreme Court, requiring thousands of work hours, hundreds of people flown in to testify and what would amount to hundreds of thousands of dollars in legal fees. Looking back, Scott remembers having only $40 available. Young took on this case pro-bono and they received $32,000 in legal aid.
This time around, a successful challenge will require the plaintiffs to gather new evidence as to how the new law is harming sex workers. But they will also have to build new evidence that looks into clients’ behaviours and demonstrates that not all are predators. Scott and Lebovitch say this evidentiary record inherently means that people will have to die in order for the courts to see how the new laws are harming sex workers. “Tragedy has to happen for people to realize that what we are talking about is really fucking important, and that’s a really dangerous thing to wait for,” says Lebovitch. “We’re just going to wait around until we have evidence? That doesn’t make sense.”
Starting a new challenge could take another seven years. But Young wouldn’t be surprised if someone decided to file something sooner. That’s why he and his team are spending the summer bringing their previous research together and setting out a step-by-step process of how one would have to proceed to challenge this law. “I don’t know whether or not I can do it because it was draining last time, but I have a lot of concerns about a job not being done or completed properly,” Young says.
Scott has been fighting this battle for more than half her life, and she is now starting to think that she won’t live to see changes in the law. But still, she can’t give up—not yet. “No government, no army has ever been able to stop sex work and for two simple reasons: sex and money,” she says. “You want to stop sex workers, you have to stop sex and you have to stop money. You think you’re up to that job?”
*Name has been changed to protect privacy.