Health and legal groups’ reports suggest prostitution laws targeting clients likely unconstitutional
A pair of reports out today (June 3) outline health and legal arguments for a possible next step in the decriminalization of sex work in Canada.
The first, drafted by researchers at the B.C. Centre for Excellence in HIV/AIDS (BCCFE), examines the consequences for the health and safety of sex workers when antiprostitution laws are enforced against clients. The second, drafted by Pivot Legal Society and Sex Workers United Against Violence, provides a legal analysis of those implications, and concludes that laws targeting clients “likely” violate the rights of sex workers.
“When the police target clients, both clients and sex workers have to take steps to avoid police detection,” the Pivot report states. “They move out of familiar and populated areas to areas where sex workers face greater risk because of the degree of isolation. The presence of police, therefore, has a destabilizing effect on their work, with far-reaching consequences on sex workers’ health, safety and control over their work.”
The report was prepared in the context of the Bedford decision, a December 2013 Supreme Court of Canada ruling that found three of the country’s prostitution laws inconsistent with the Canadian Charter of Rights and Freedoms.
Those sections of the Criminal Code concern communicating for the purposes of prostitution, living off the avails of prostitution, and keeping or being in a common bawdy-house. The court found those laws were in a “demised public interest” when applied against sex workers, and in violation of section 7 of the charter, which guarantees security of the person.
Pivot’s report argues that if antiprostitution laws targeting sex workers are found to cause harm in violation of the charter, it’s likely that laws targeting clients would also be found unconstitutional.
“Given that the harms identified in the GSHI/UBC research mirror the harmful conditions created by the laws that were challenged in the Bedford case, a prohibition of the purchase of sex is likely to be found to violate sex workers’ right to security of the person, as protected by section 7 of the Charter,” it states.
In a telephone interview, Pivot litigation director Katrina Pacey told the Straight that in light of the Bedford decision and given the Conservative government’s “tough on crime” agenda, it’s expected we’ll soon see new legislation that targets sex workers’ clients—a strategy known as the Nordic model.
A Department of Justice survey made public on June 1 indicates that a majority of Canadians support such laws. It’s stated there that 56 percent of respondents agree that “purchasing sexual services should be a criminal offence”. (Only 34 percent said selling sex should be illegal.)
On June 2, Justice Minister Peter MacKay wrote on Twitter that those survey results would be “taken into account” as the government drafts new legislation on prostitution.
Pacey emphasized that whether laws penalize sex workers or their clients, the health and safety implications for the former group are largely the same.
“We are seeing a different form of criminalization that will create and replicate the same harms that we saw before [the Bedford decision],” Pacey said. “From a human-rights perspective and from a sex-workers safety perspective, we would hope they would not do that.”
If the Conservative government does, she continued, the BCCFE and Pivot reports point to how such laws could be challenged in court.
“Pivot Legal Society is certainly committed to litigating this if we have to,” Pacey said.