Some say that history repeats itself, but those who watch our government at work know it to be true.
Last week, the Standing Committee on Justice and Human Rights began hearings on the Protection for Communities and Exploited Persons Act (PCEPA)—once again. For those of you who may be experiencing a sense of déjà vu over this, you are quite right to feel that way.
The same committee conducted very similar hearings in early 2018. That time around, however, the committee was focused on human trafficking.
Still, the members heard extensive evidence from a variety of individuals and organizations throughout Canada about the problematic nature of our existing sex work laws under PCEPA and the negative ways this legislation effects sex workers.
PCEPA has been in been in place for seven years. The legislation conveniently contains a clause that clearly states that it is to be subject to parliamentary review five years after enactment. The purpose of this review is so study its impact.
However, when the five-year deadline expired with no review, a charter challenge was filed. This forced our government's hand, and brings us to where we are today.
By way of background, PCEPA was enacted by Stephen Harper’s government in 2014. The enactment followed a declaration of invalidity from the Supreme Court of Canada with respect to our prior sex-work laws.
The court held that those laws, criminalizing sex workers for matters related to sex work, were unconstitutional. It said that they unduly jeopardized the rights and safety of persons who engage in occupational sex work. They put sex workers in danger and could not be justified in a free and democratic society, such as ours.
Prior to enacting PCEPA, the Harper-era government took time to conduct hearings. The aim to these hearings, so it said, was to properly inform itself on the reality of sex work and to devise the best approach to take moving forward. Presented with a plethora of available options—including passing no new legislation at all—the government ultimately went with PCEPA.
This approach, often referred to as the “Nordic Model”, regulates the bodies and lives of sex workers from a different angle. Rather than criminalizing the sex workers themselves, it criminalizes their clients.
PCEPA marks the first time that Canadian criminal laws have sanctioned the purchaser of sexual services, rather than the provider. This criminalization is broad, and includes criminalizing the purchaser for acts including communication that is aimed at obtaining such services.
During those hearings, many witnesses, including sex workers and community-based advocacy groups, warned against this approach. They highlighted the dangers that would be reproduced once again under this model. But the Conservatives did not listen.
Instead, they went with PCEPA, touting it as a revolutionary approach to the “issue of sex work” It was passed with the goal of destigmatizing sex workers while simultaneously protecting Canadian communities by putting an end to the demand for sex work.
Needless to say, that goal has failed miserably.
After all, a rose is still a rose by any other name; and a bad idea is still a bad idea no matter which way you spin it.
Although PCEPA represents a different approach to how sex work is regulated, it gives rise to the same problems. These problems have been well documented for decades—and criminalization is no answer.
Canadian sex workers continue to face systematic discrimination, stigma and vulnerability under PCEPA. They are forced to work on the margins, in an environment shrouded in secrecy and suspicion. Clients, who now fear prosecution, are less likely to share accurate and truthful information with sex workers. Clients are also more likely to mistrust sex workers and to avoid communication which is essential to establishing safety, boundaries, and informed consent.
This prevents sex workers from completing important client screenings prior to meeting with them.
While the approach under PCEPA is different—the result is the same. Sex workers are still at risk due to the fact that their work is criminalized.
The same charter violations that plagued our old laws—the same dangers to sex workers that existed in the past—continue to exist now. The Supreme Court of Canada was clear in its findings: criminalizing sex work is dangerous. Further evidence of this was presented to the Harper government in 2014. It was again presented to the standing committee in 2018. The evidence is clear, and the government has been made aware of it—time and time again.
Yet, the law remains as it is.
Going into these hearings, it is hard to have hope. It is hard to have hope that the standing committee will do anything other than take evidence on one side of their desk while maintaining the status quo off the other. Can we believe that they are doing more than just going through the motions? Is there a chance for change, this time around?
Or is this just another case of history repeating itself?