Bill C-36: More Harm Than Good? - Katie Rothwell

The landmark 2013 decision of Canada (Attorney General) v Bedford (“Bedford”) provided a glimmer of hope for sex workers across Canada when three provisions in the Criminal Code (“the Code”) were deemed unconstitutional and were struck down. Many advocates and sex workers hoped this was a move in the direction of Canada decriminalizing sex work. Instead, what resulted from Bedford was Bill C-36. Bill C-36 promised positive change for the sex work industry. However, in the eyes of many, Bill C-36 has failed to deliver on this promise.

Bill C-36 targets “those who create the demand for sexual services, and those who capitalize on that demand” instead of targeting the sex workers themselves. To some, the shifting focus to those paying for sexual services is a way to “lessen the social and individual harms caused by sex work,” effectively “eradicating the sex trade”. However, in the years since Bill C-36 came into effect, it has become apparent that it has produced more harm than good. In light of this, there is still a push from advocates, sex workers, and members of the general public for the government to decriminalize sex work entirely as “decriminalization is a first step to ensuring sex workers’ safety and dignity.” Until Canada decriminalizes sex work, Bill C-36 is what currently prevails.

Bill C-36 has received much criticism, namely, many question its constitutionality. In support of this argument, it is noted that, since the introduction of Bill C-36, it has effectively forced sex workers to take their work underground. This underground sex work creates “an unsafe working environment for sex workers” where “the conditions of its existence [are] unseen and untouched”. These working conditions present an increased risk for sex workers as they are opening themselves up to increased violence and a threat to their personal safety. Due to this, a clear question emerges as to whether Bill C-36 is constitutional as the rights given under section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”) to sex workers appear to be violated with the changes resulting from Bill C-36.

In looking further at the threat Bill C-36 poses to sex workers’ personal safety, it is noted by Kunimoto that when sex work takes place in a more public setting it “imparts a degree of security during initial interactions with clients”. Namely, in a public place sex workers have the ability to perform a type of screening on those looking to purchase their services. Also, in a public a price can be negotiated, use of protection can be discussed prior, and, overall, sex workers are able to get a feel for the potential client. These all allow sex workers to make a more informed decision as to who they are providing sexual services to. However, with Bill C-36 effectively forcing sex work underground, sex workers are no longer readily afforded the ability to perform their necessary safety and security checks, resulting in many “not notic[ing] or ignor[ing] warning signs”. Under Bill C-36, “sex workers are now more likely to accept clients who are unsure of their status regarding sexually transmitted infections (“STI”) or who refuse to use a condom”, which undoubtedly puts sex workers at a greater risk. Another aspect that threatens the safety of sex workers is that sex workers are “less likely to hire security or bodyguards, for those hired could then be charged for, ‘living under the avails of prostitution’”, eliminating another safety measure sex workers were once presented with.

One of the objectives Bill C-36 seeks to achieve is “eradicating the sex trade”. However, what Parliament fails to realize is that in attempting to eradicate the sex trade it further poses a threat to the safety and security of many sex workers. As Kunimoto states, for those sex workers who are “in situations of dependency”, a higher demand for their services allows for a degree of control to be exercised. That is, with higher demand for services, one can charge higher prices and become more selective in the clientele they choose to engage with.” Therefore, in lessening the demand for sex work, many sex workers will not have the ability to be selective in those they are performing their services for. As a result of this, sex workers will again be put in a dangerous situation providing services to those who are violent or providing their services under conditions they do not feel safe with. It appears clear that with a movement to eradicate the sex trade, the life, liberty, and security of sex workers will be threatened.

In looking at the many harms sex workers face as a result of Bill C-36, one can wonder how Parliament thought this bill was a step in the right direction after Bedford. Rather, it appears that Bill C-36 was merely an attempt to put forth the “government’s purely moralistic stance on sex work”, masked under the appearance of new legislation seeking to protect sex workers. As the target of Bill C-36 has shifted its focus onto those paying for sex work, it would seem that this does offer a sense of protection to sex workers. However, as Browne states, “sex workers say the laws have made things worse for them because punishing their clients is akin to punishing them”, which is evident in the increased threat to safety sex workers now face.

It is clear that Canada still has a long way to go in protecting sex workers and providing them with access to the social services they are entitled to. In the event that Canada does not decriminalize sex work, it is apparent that, in creating new sex work legislation, more concern needs to be given to the safety and security of sex workers. There is a need for consultation with sex workers to ensure their voices are being heard and their needs met. As Doe notes, “women have the right to live free from violence, or the threat of violence in their lives. A right that applies to all women, including sex workers”.