Changing Perspectives or Changing Objectives? - Chenoah Bueckert

The topic of sex work is a personal struggle for me. My mom used to be a sex worker; she has now passed on. To be honest, I do not know much of the history, but I do know that my religious family would rather avoid that “hurt” of the past. This general attitude towards sex work is what I believe controls society still today. When considering this topic, I think it is so important to question yourself and ask why you believe these actions are wrong. Why is this line of work any more harmful than, say, being a criminal defence lawyer? A lot of people in society also do not approve of “lawyers getting bad guys out of jail.” I am of the viewpoint that the jobs we pursue should be respected as a personal choice, provided they do not directly physically harm other people. Parliament and the Supreme Court of Canada (“the Court”) seem to disagree.

On the face of it, the case of R v Bedford (“Bedford”) looked to be a constitutional win for sex workers in Canada. In Bedford, the Court suspended the declaration of invalidity of multiple provisions of the Criminal Code (“the Code”), which targeted sex workers. The provisions were found to be unconstitutional as the law’s objective to get rid of prostitution was being disguised by the “pith and substance” of limiting public nuisances. “[Ultimately], parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes”.

In particular, the laws that were struck down in Bedford were as follows:

• operating common bawdyhouses. This prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

• living on the avails of prostitution. This prevented anyone, including but not limited to pimps, from profiting from another’s prostitution; and

• communicating for the purpose of prostitution in public. This prevented prostitutes from offering their services in public, and particularly on the streets.

The collateral effects of these laws were as follows:

• sex workers could not have clients come to their own place, they had to go to their client’s houses. This caused safety issues for the sex worker and engaged their rights under section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”), namely, the right to security of the person;

• this law made it a crime for anyone to supply a service to a sex worker, simply because they were a sex worker. This prevented them from hiring bodyguards, drivers, receptionists etc. This also negatively impacted the security of the person and engaged the section 7 Charter rights of the sex worker; and

• face-to-face communication was an “essential tool” in enhancing street sex workers’ safety and that, by depriving them of this tool, this provision significantly increased the risk they faced and therefore engaged their section 7 Charter interest in security of the person.

Following Bedford, the legislature implemented Bill C-36 to address the concerns of the Court. However, rather than changing the perspective on sex worker, the government changed their objective.

“Bill C-36 treats prostitution as a form of sexual exploitation that disproportionately impacts on women and girls. Its overall objectives are to:

1. Protect those who sell their own sexual services;

2. Protect communities, and especially children, from the harms caused by prostitution; and

3. Reduce the demand for prostitution and its incidence.”

After the implementation of this bill, legislators sought to encourage the opinion that the new laws no longer targeted sex workers but rather were protecting them, as was argued for in Bedford. In my opinion, what has happened is a creative scheme to win the hearts of a society that thinks sex work is bad and hence creates this perception that the government is not targeting sex workers. Parliament has done this by criminalizing behaviour of the seeker of the service rather than the service provider. All things considered, the government is still not providing protection for those who still choose a career in sex work. The new laws have actually rendered sex work substantially illegal but without penalty for the worker, whereas before the law did not explicitly make sex work illegal, it just criminalized everything involved. This being noted, the new laws still look very similar and present the same issues that Bedford strived to overcome:

1. Section 286.4 of the Code – does not allow for advertising of sexual services. In the 2018 case of R v Boodhoo, the applicant argued that this provision “may catch third parties such as photographers or web hosts which did not align with the laws objective of reducing the demand for prostitution.” This was similar to the broad net that was cast in the offence of living on the avails of prostitution offence that was struck down in Bedford.

2. Section 286.1 of the Code – does not allow for a purchaser to communicate in ANY place for that purpose. Now the law expressly prohibits communication both privately and publicly, so the sex worker who chooses to sell their own services must do so in private to protect the purchaser, which will putsubject them to the same safety risks as before.

Unfortunately, Parliament has spent a significant amount of time crafting these new laws to align with their objectives and, as per Justice Bale in R v Boodhoo, the laws now align with the objectives. Where the laws still fall to be unconstitutional, section 1 is always going to save them because who can argue with protecting women and girls who are “victims”. This is the sad reality we face. The choice to be a sex worker and the ability to be protected within that given field is not with the worker but with the government that thinks it knows what is best for these individuals based on the views of a certain population within our society.

If you got through this blog, all I would ask is that you educate yourself. See both sides of the story. Put yourself in the shoes of a sex worker. How would you feel if the government decided your job was not worthy of protection because parts of society viewed it as morally wrong, but you thought it was liberating? Let us focus on changing our perspective, not our objectives.