Sex Work Activism In Canada: Speaking Out, Standing Up

sex work

activism

in canada

Speaking Out, Standing Up

Edited by Amy Lebovitch & Shawna Ferris

ARP BOOKS WINNIPEG, MB

Copyright © 2019 Amy Lebovitch & Shawna Ferris

ARP Books (Arbeiter Ring Publishing)

205-70 Arthur Street

Winnipeg, Manitoba

Treaty 1 Territory and Historic Métis Nation Homeland Canada

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3

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arpbooks.org

Design and layout by Relish New Brand Experience

Cover photo from SWANS by Cait Mitchell

Printed and bound in Canada by Imprimerie Gauvin

COPYRIGHT NOTICE

This book is fully protected under the copyright laws of Canada and all other countries

of the Copyright Union and is subject to royalty.

ARP Books acknowledges the generous support of the Manitoba Arts Council and the

Canada Council for the Arts for our publishing program. We acknowledge the financial

support of the Government of Canada and the Province of Manitoba through the Book Publishing Tax Credit and the Book Publisher Marketing Assistance Program of Manitoba Culture, Heritage, and Tourism.

Library and Archives Canada Cataloguing in Publication

Title: Sex work activism in Canada : speaking out, standing up / edited by Amy Lebovitch and Shawna Ferris.

Names: Lebovitch, Amy, editor. | Ferris, Shawna, 1973- editor.

Description: Includes bibliographical references and index. | Text in English with two chapters in French and English.

Identifiers: Canadiana (print) 20190196289 | Canadiana (ebook) 20190196408 |

ISBN

9781927886298 |

ISBN

9781927886298 (softcover) |

ISBN

9781927886304 (ebook)

Subjects:

LCSH

: Sex workers—Political activity—Canada. |

LCSH

: Sex workers—Civil rights—Canada. |

LCSH

: Prostitution—Canada.

Classification:

LCC

HQ

148 .

S

49 2019 |

DDC

306.740971—dc23

Table Of Contents

      Acknowledgements

      Introduction

Amy Lebovitch and Shawna Ferris

1    The (Un)Constitutionality of PCEPA: A Necessary Discussion

Naomi Sayers

2    Peers Victoria: 20 Years of Community, Support, and Activism by and For Sex Workers

Jody Paterson

3    Pick the time and get some women together: Organizing as the Downtown Eastside Sex Workers United Against Violence Society

SWAUV Board members in collaboration with Amy Lebovitch and Shawna Ferris

4    FIRST History: A Passion for Organizing

Esther Shannon, Catherine Zangger, and Joyce Arthur

5    How You Survive This Life Everyday: HUSTLE

Matthew Taylor and other HUSTLE members

6    Providing Alternatives, Counselling and Education Society

Laura Dilley and Sheryl Kiselbach

7    SWAN Vancouver: Supporting Immigrant and Migrant Women in the Sex Industry

Kimberly Mackenzie and Julie Ham

8    Triple-X Stories

Directors of Triple-X

9    Controlling Our Destinies: How the BC Coalition of Experiential Communities (BCCEC) Shaped Sex Worker Rights Organizing in Vancouver, British Columbia

Susan Davies and Dr. Raven Bowen

10  Prostitutes Involved, Empower, Cogent—Edmonton (PIECE)

Monica Valiquette

11  Changing the Conversation: The Sex Workers of Winnipeg Action Coalition

Anlina Sheng, Claudyne Chevrier, and other SWWAC members

12   TOGETHER We Fuck to Win: A Whorestorical Story of Sex Work Activism and Action in Sault Ste. Marie: from Stop the Arrests to SSM Sex Worker Rights

Arlene Pitts, Amanda Jabbour, and Shauna Weston

13  SWANS: Calling Out Adversity and Finding Community through Sex Worker Advocacy in Sudbury, Ontario

Tracy Gregory

14  From Caterpillar to Butterfly: The Birth of a Migrant Sex Workers’ Organization in Canada

Elene Lam, Nancy Sun, and Stephanie Milliken

15  Maggie’s: Toronto Sex Workers Action Project

Maggie’s

16  WHOREISTORY: Time Capsules of Toronto Sex Work Activism, 1983 to 1998

Valerie Scott

17  Stella, l’amie de Maimie: creating a space and movement for working women

Generations of Stelliennes at Stella, l’amie de Maimie

18  Alliance féministe solidaires pour les droits des travailleuse et travailleur du sexe (AFS)—courte histoire, 2010-2014

Maria Nengeh Mensah, Louise Toupin, Véronique Leduc, Marie-Eve Gauvin, Sébastien Barraud, Julie Marceau, Nicole Nepton et Maxime Vallée

      AFS: The feminist solidarity alliance for sex worker rights: a brief history (2010-2014)

Maria Nengeh Mensah, Louise Toupin, Véro Leduc, Marie-Eve Gauvin, Sébastien Barraud, Julie Marceau, Nicole Nepton & Maxime Vallée

19  Projet L.U.N.E. : Par et pour les travailleuses du sexe

Maude Santerre

      Projet L.U.N.E.: By and for sex workers

Maude Santerre

20  The Story of Stepping Stone in Nova Scotia

Stepping Stone

Appendices

1   Canadian HIV/AIDS Legal Network’s report, Sex, Work, Rights: Reforming Canadian Criminal Laws on Prostitution, originally published in 2005

2   Selections from Pivot Legal Society’s report, Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform, published in 2006

3   SWAN Vancouver, IM/MIGRANT Sex workers, Myths and Misconceptions: Realities of the Anti-trafficked, 2015

4   Selections from POWER’s report, The Toolbox: What Works for Sex Workers, published (again) in 2014

5   Canadian Alliance for Sex Work Law Reform’s executive summary of their report, Safety, Dignity, Equality: Recommendations for Sex Work Law Reform in Canada, published in 2017

6   Canadian Alliance for Sex Work Law Reform’s report, Canada v. Bedford: The Importance of the SCC Decision, published in 2014

Dedication

We dedicate this book to all of the sex workers, activists, and allies who have worked for so many decades to fight for sex worker rights in Canada.

Acknowledgements

This book would not exist without all of the sex workers, activists, and allies who have worked for so many decades to fight for sex worker rights in Canada. This book would also not exist without the invaluable conversations to envision and plan the collection that we had with board members of the Downtown Eastside Sex Workers United Against Violence Society. We are also grateful to SWUAV for trusting us enough to collaborate with us to write their chapter. We are deeply grateful to all of the contributors to this collection for believing in this project, and for hanging on and getting the work done over the past five years.

Huge thanks to Kyla Shead, Women’s and Gender Studies administrator extraordinaire, for helping us paperwork our way through this and so many other projects. Thanks to Dr. Kiera Ladner for her guidance and advice for developing edited collections, for her feedback on our editorial introduction, and for recommending our excellent publisher. Thanks to Valerie Scott and George Stamos for helping to craft the title for this book. Thanks as well to Carmen Miedema for her research assistance, and to Claudyne Chevrier for sharing from her own research historical information included in some of the editorial footnotes. Heartfelt thanks to ARP Books for believing in this book, and to ARP’s Irene Bindi for being such a knowledgeable, efficient, thoughtful, and patient editor.

We are also grateful for the financial support we received for this book project from the Centre for Human Rights Research, the URGP and UM/SSHRC Grants Programs, as well as the Women’s and Gender Studies program, all of which are based at the University of Manitoba.

Introduction

Amy Lebovitch and Shawna Ferris

This is a book of sex worker activisms, past and present. Too often, sex work-related activisms, support networks, and the organizational skills and practices required to make them work are pushed to the margins or neglected in official histories. This book is meant to resist this practice of forgetting, and to provide activists and organizations more opportunities to share knowledge and best practices, celebrate successes, and record sex work activist histories for this generation, and for generations of activists and supporters to come.

This book is edited by two sex work activists, one of whom is a sex worker, and one of whom is an academic. (We’ll leave it you to decide which is which.) But the idea for the book was not ours alone. We worked particularly closely with the Vancouver-based Sex Workers United Against Violence Society (SWUAV), a group of self-described current or former sex workers the majority of whom are Indigenous, in the early stages of the book’s development. SWUAV helped us to decide what kind of a book it should be, and how we could ensure that as many sex workers as possible felt represented and included.

With SWUAV, we decided that the collection would include the stories of the sex work activist groups behind two precedent-setting sex work-related constitutional challenges,¹ the stories of sex worker-run groups from across the country who supported these challenges, and as many other sex worker-directed and sex work-focused groups from across the country as possible. We all decided that the information shared by these groups would ideally include:

how they formed and established themselves;

how or if the group’s goals and membership have changed since the early days;

key projects they have taken on and how they have done so;

any advice they would offer to those who want to do or understand sex worker activism, or start their own activist group.

The chapters in this collection indeed include much of this information. The collection also includes key sections of sex work-related reports by sex worker activist and allied organizations. There are so many great publications that sex workers have created; but these are the ones that came up most often in the many conversations that lead to this book.

To introduce this book further, we decided to do what we often do, and write in our two distinct voices. Sometimes our voices blend; sometimes they don’t. We’ve tried to reflect that here, and to adequately contextualize the chapters and appendices that follow. For many readers, especially sex worker activists, this collection needs no further introduction. For those of you who need or want some further context for the histories collected here, we offer the following.

We have tried to imagine some questions or concerns you might have. In all honesty, these are also questions and concerns that we share.

Why this book? Why now?

AMY

This continued war on us has seen so many friends and colleagues lost. It became increasingly clear to me over the years that preservation, the sharing of memories, stories, feelings and histories, was so important to document. And who tells these stories when people are no longer around? And still, there are even more histories of sex work activism throughout Canada that aren’t represented in this book.

In 2003ish, I started attending Sex Professionals of Canada (SPOC) meetings at Valerie Scott’s warm and welcoming home. I didn’t have to be anyone but myself in that space, and I felt loved. That was life changing. Before that, working alone and not able to focus on anything other than my own survival left me isolated and unaware of the rights that we had as sex workers to live and work with respect.

When the possibility of a history book on sex work activism with Shawna was being imagined, we talked about sex workers meeting, sharing food and planning their own groups, perhaps drawing on the collective wisdom and stories held within this edited book, and the many current and future books, art projects, films, etc., etc., etc., that are out there, or will be out there.

These last few years have been fucking hard, politically: terrible new laws, the inaction of our current Liberal government, lost friends and colleagues, amped up police raids, the systematic dismantling of our safety systems as sex workers through censorship of our ads, and so-called anti-human trafficking initiatives which are meant to intimidate and harass.

More *things* out in the universe from sex workers, are essential. We need to continue to populate this earth with art, words, resistance, from our own minds and mouths.

SHAWNA

Why not a book? Why not now? I’ve gotten a little defensive about this question as many grant applications required that we answer it in one way or another—in part because print is more expensive than, say, online publishing. But I’ll talk about that in more detail shortly. In terms of why we wanted to do this book project now: there has been so much sex worker activism to this point across the country, so much cross-country collaboration, and so much city-specific sex worker activism. In the wake of precedents set in the Ontario and BC-based constitutional challenges brought by sex worker activists, now seemed a particularly important point to collect and share records of the decades of creative, collaborative, and revolutionary community-building, outreach and support, awareness raising, rabble-rousing, and legislative work that got us here. Why not a whole book right now that is dedicated to sex worker activist histories, remembrances, how-to’s, and other teachings?

Some people have already written about their activisms and their activist research in collections like Selling Sex (2013) and Red Light Labour (2018). Even more information about sex worker activisms can be found online. As most of us are increasingly aware, however, world wide web records—traditional websites, social media accounts of various kinds—are impermanent. While I admire the vision of initiatives like the Internet Archive, the fact remains that words printed on paper make up one of our most longstanding knowledge-preserving-and-sharing technologies. This book joins a growing print library that records revolutionary activisms.

I teach about sex worker activisms in university classrooms, where academic voices and perspectives have dominated in all but a few precious instances. Despite this reality, I’ve found that students in my Women’s and Gender Studies classrooms engage in a more dynamic, interested, and emotionally intensive way to arguments and perspectives from/by experiential people. Joining a growing collection of sex worker-created educational resources, this book will support this kind of student engagement.

I also expect the (hi)stories recorded here will help non-sex workers to better understand sex worker activist concerns, aims, and experiences. Perhaps this will bring more allies to the movement.

While the technology of words printed on pages to be bound together, read, and shared is an enduring form, it’s also a form that has been an elusive one for the preserving and sharing of sex worker voices. This is maybe why the groups and individuals we approached to contribute chapters have been so positive and excited about this book. For skeptics about the relevance of the print form in the so-called digital age, I note that it is easy to downplay the significance of books that discuss issues of relevance to you if you see such things all the time.

Hurry Up and Wait, and Other Lessons from Community Organizing

AMY

There is a pressure I feel, wanting to do justice to the many stories and activisms that Canada has seen in the decades and decades of sex worker activism. Knowing that groups were struggling to write their chapters, and thinking through their history, what they wanted to say. Many struggling to find time between hustling, or being a mom, or an outreach worker, or an artist, or a friend, or, or, or, and, and, and, …

Some amazing groups never got back to us and their reasons for that are, I am sure, wide and varied. It’s hard not to take that personally. Was it me? Was I just/yet another sex worker working with academia, and they wanted no part of that? Some groups replied and really wanted to contribute but were just stretched too thin to be able to.

Over the course of these last five years, groups have experienced great loss, the deaths of members; and through all that pain, they continue to provide the services and support sex workers need and deserve. And further still, the continued fighting and resisting against those who want to erase our experiences and stories. They may not have been able to include their stories here, but those stories shouldn’t and won’t be forgotten.

SHAWNA

Originally, we thought this book project could happen faster. Maybe in eighteen months or two years. But we quickly realized that we’d have to cut many chapters if we were going to adhere to that kind of timeline. People who are doing activism on a volunteer basis outside of their working hours cannot always find the time to write and revise a whole chapter quickly. And even those who receive salaries for their outreach and advocacy do not have a lot of time for this kind of writing. Other resources for writing are likewise scarce for some—for lack of a computer, one of the contributors to this collection conducted interviews for and typed a significant portion of their chapter on their phone. As editors, how could we not wait for a chapter like this? So, we made a conscious decision to slow down. We tried to establish timelines that were realistic and reflective of each group or individual’s capacity to do their work, as well as our own capacity over the years to do the work needed. And so, here we are, five years later, introducing this rich collection.

Resources for writing come in many forms: emotional wherewithal, physical energy, or intellectual ‘space’ to do the work. At least four groups that we know of also had to deal with deaths of their members over the years of this project alone. At least one of these tragic losses was due to an exceptionally violent attack. I imagine there are other contributors who dealt in various ways with similar pain and outrage while their writing processes unfolded. Resources and capacity for writing come in many forms, and we don’t always have everything we need to make the work happen.

The Absences

AMY

These chapters represent beautiful, wonderful, and powerful histories. Histories that should be remembered. When histories are being told, being recorded, many stories, many other histories get excluded. Many times, that is done purposely, by those who want to control the narrative of who and what sex workers’ experiences are. Some still are precluded by the inaccessibility of writing itself. What I struggle with, in this and other edited collections, are those gaps. I really didn’t want to miss anything. And I know Shawna didn’t either. So…there are omissions. I worry about these. This book is by no means a complete picture of sex worker activism in Canada. It is meant as a snap shot. Histories that are filled with pain and love. There are so many more. Let’s keep telling them.

SHAWNA

I am very happy with the book as it stands for many of the same reasons as Amy. But some voices and histories are missing; and I regret these missing parts. We have no chapters from exclusively trans individuals or groups, even though as readers will be well aware, trans folk’s experiences in sex work and associated activisms can be quite different from those of cisgendered folk. We have no chapters from activists from some provinces and territories across the country. We don’t mean to suggest that sex workers aren’t doing important and visionary work in these areas; in many cases, the gaps in this collection are the result of complications and/or lack of capacity. For example, one group who had planned to write a chapter faced surprise funding cuts and had to scramble to keep their programming happening. At least two other groups were busy supporting individual members in court.

Resisting academic peer review

AMY

Early on, when we were working with other sex worker activists to imagine the book, Shawna said to me, The peer reviewers at some academic presses are going to be my peers, not yours. Of course, there are sex workers in academia, but I saw Shawna speaking to the structure and context of academic peer reviews. Traditional peer reviewers are academic peers, seemingly reviewing a book with that lens. Is that ethical? It’s not that we didn’t want feedback, or to give our contributors feedback on their work; we just had to come up with a way to do it that didn’t privilege academic review as the only way to help people to revise and develop their work. We went through 2- or 3-chapter drafts with each contributor. We also asked others to comment on this introduction.

SHAWNA

Both we and the other sex worker activists we consulted in the early days of this project decided pretty quickly that we weren’t willing to participate in the traditional academic ‘peer review’ process. We did not want the book manuscript to be evaluated and commented on by researchers in universities; such a process, however it unfolded (even with sex worker researchers), would privilege me and other university researchers over the community-based sex worker activists represented in this collection. If we were going to put together a book about sex worker activists, then we needed to have that intent reflected in the publication process.

There are Ethics, and Then There are Research Ethics Boards

AMY

My experiences with Shawna and having to deal with ethics boards have really made it hard for me to view and think of them as anything but protection for universities hiding behind the pretext of protection for people who talk to researchers.

SHAWNA

I admit I was initially surprised at how much time Amy and I had to spend explaining to research ethics boards (REBs) the things that we could and could not ethically do, when speaking to sex workers for the purposes of research. Old, long-ago-proven-false stereotypes about sex workers surfaced in these dialogues over and over again. In one instance, our funding source timed out (in other words, the funds had to be spent by the end of June, and we couldn’t use them without ethics approval) as we emailed back and forth with an REB for the entire summer. Over that summer, we used various sex working and non-sex working writings and scholarship to explain and contextualize, repeatedly, what we knew to be true: that sex workers wouldn’t work with us if we, as the REB was suggesting, invoked whorephobic, stigmatizing stereotypes in the formal research documents we shared with them. By the end of the summer, the REB had finally seen things our way, but we had to pay out of pocket to do the work. I have been encouraged by some to consider this as frustrating but necessary work done to help REBs better serve others who will partner with sex workers in research. But I can’t quite get there. That was some pretty fucking costly education we both paid for and provided.

What Do We Hope You Will Take Away From This Book?

AMY

Resilience! The power of sex workers coming together to fight. The love that exists here, despite our society being so hateful toward us (sex workers). There is so much powerful resistance that exists in this fucked up society. There are so many activists all across the world doing amazing, brave, and beautiful resistance. Some of those stories are contained in these pages, others appear in many other books. Seek them out. Learn from sex workers.

SHAWNA

I hope readers find lessons, community, resources, hope, vision, and plans for a better socio-political landscape for sex workers. If you are sex worker activists, I also hope you will work with us in the future. I hope these chapters inspire you. And I hope that you share our commitment to record, preserve, and propagate more sex worker activist histories. May there be more (hi)stories!

About the Collection

With the exception of Naomi Sayers’s legal analysis of the Protection of Communities and Exploited Persons Act, which follows directly on this introduction, the chapters in this collection are arranged according to where the groups are in the landscape or cityscapes of this county; and we’ve put them in order from west to east. There is no overtly political reason for this arrangement, except that it seemed the least controversial way for things to be arranged. We considered other kinds of arrangements—for example, organizing chapters according to whether the groups they discuss are sex worker-lead or not; or organizing chapters from oldest/longest-running group to youngest/shortest lifespan as a group (or vice versa). But even our discussions of such arrangements were complicated, contradictory, and fraught. Imagining how such organizational frameworks—however well-intentioned on our part—might be perceived in and outside of sex worker activist communities lead us to this simpler west-to-east approach.

What also becomes clear throughout this collection is that the histories recorded here often only begin to describe and discuss a portion of the exciting and important work that has been done to bring us to the current era in sex worker activist history. There are so many more stories to tell, so many more histories to record. There are perhaps even more histories that have not been or cannot be shared—because activists are taken from us, or because people step away from sex worker activism and don’t wish to have their history in this sphere follow them into the rest of their lives. We are so grateful for what people have shared here, and we are so honoured to have been able to help share these stories more widely. They are precious.

1 After almost four decades of activism in urban centres across Canada, sex work activists have pursued two separate successful—and internationally-celebrated—constitutional challenges to prostitution-related laws: one originating in British Columbia (Canada [Attorney General] v. Downtown Eastside Sex Workers United Against Violence Society, 2012), and one originating in Ontario (Bedford et al. v. Attorney General of Canada, Attorney General of Ontario et al., 2010; Canada [Attorney General] v. Bedford, 2013). The B.C. challenge was brought by individual sex worker Sheryl Kiselbach and sixteen Indigenous persons identified in court proceedings only as SWUAV, or the Downtown Eastside Sex Workers United Against Violence Society. This case established the right for SWUAV or any other marginalized group to bring a charter challenge as a group, not as individuals. This win significantly improved access to justice and Charter protection for marginalized people who want to bring human rights claims before the courts (Pivot Legal Society, 2015). The Ontario challenge was brought by individual former sex workers Terri Jean Bedford, and Valerie Scott, and by current sex worker Amy Lebovitch. This case resulted in a unanimous decision to strike down three laws because they violated sex workers’ rights to safety and security under the Canadian Charter of Rights and Freedoms

Chapter 1

The (Un)Constitutionality of PCEPA

A Necessary Discussion

Naomi Sayers

Prostitution: A Choice Within a Range of Choices

When I first entered the sex trade, I was eighteen years old. That year, I was attending high school and was enrolled in academic courses as I planned to attend university. A number of years ago, I was in a car accident. I sustained a brain injury from that car accident. Some of the effects of this brain injury include some memory loss (I have no memory of the car accident, the days leading up to the accident, and a week or so after the accident) and attention-deficit problems. There are other lifelong side effects of the brain injury, but I spent the first few years in high school and after the injury re-learning how to study, training myself to sit for long periods, and adapting to some of the other lifelong effects. Many doctors insisted that I had to take things slowly.

For my last two years of high school, I moved into the city near my First Nations community, and I began working various part-time jobs to help pay my rent. Working these jobs while navigating a new life with a brain injury took a lot time away from my studies. Not long after my eighteenth birthday, I ended up working with an escort agency. Prostitution provided me with the ability to quit my multiple part-time jobs, and it permitted me the time I needed to focus on my studies while also learning to live with a brain injury.

My story about how and why I entered into the sex trade is important especially to understand the experiences of young Indigenous women in the sex trade who face many socio-economic barriers. Indigenous women are often talked about in the abstract as a socio-economic or cultural group or demographic; policy makers rarely hear from us directly. On July 7th, 2014, I was the only First Nations woman with lived experience in the sex trade who spoke in opposition to the criminalization of prostitution at the federal government’s standing committee on justice and human rights. At the time, the federal government introduced a bill in response to Canada (AG) v Bedford, 2013 SCC 7 (Bedford),¹ nearly six months after its release.

Bedford held that three prostitution provisions in Canada’s Criminal Code violated a prostitute’s right to security of person, a right protected by the Charter. These provisions included the living on the avails provision, the communication provision and the bawdy-house provision (collectively, the Provisions). The bill that the federal government introduced is now a set of laws entitled the Protection of Communities and Exploited Persons Act, SC 2014, c-25 (PCEPA). Less central to the discussions on the constitutionality of PCEPA is the fact that Bedford did not prevent the federal government from enacting a law that could regulate prostitution. In writing for the Supreme Court of Canada, then-Chief Justice McLachlin wrote:

I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter. That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted. Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure—for example, permitting prostitutes to obtain the assistance of security personnel—might impact on the constitutionality of another measure—for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime (Emphasis added.)²

Through PCEPA, arguably, the federal government did what the Bedford case permitted it to do: it imposed limits on where and how prostitution may be conducted.

In this paper, I examine whether PCEPA is compliant with Bedford. First, I summarize how the Supreme Court of Canada (SCC) treated the Provisions. Second, I outline how the SCC set the general parameters for which the federal government could impose limitations on prostitution. Third and finally, I argue that, despite being compliant, policy makers need to examine the full context of criminalization in the lives of Indigenous women who sell and trade sex. In other words, policy makers need to start listening to Indigenous women and their lived experience. While I understand that Amy Lebovitch, Terri-Jean Bedford and Valerie Scott (the Applicants), the three women who brought forward the challenge, relied on other Charter rights in their application, I focus solely on the right to life. I do so because Indigenous women in the sex trade are primarily concerned with survival, or the right to live. This concern is made clear, again, in the contexts of the first National Inquiry into Missing and Murdered Indigenous Women, Girls and Two-Spirit people.³

Prostitution: Agreeing to Disagree in the Process to Achieve End Goal

The SCC released its Bedford decision in December 2013.⁴ The decision held that the bawdy house provision, the living on the avails provision and the communication provision violated Section 7 of the Charter.⁵ Section 7 protects an individual’s right to life, liberty or security of person from state action, legislative or otherwise, except in accordance with the principles of fundamental justice.⁶ A Charter violation, however, is subject to reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society.⁷ The SCC determined that all three prostitution provisions violated prostitutes’ right to security of person and declared the laws invalid, suspending their invalidity for one year.⁸

In response to the Bedford decision, the then-majority Conservative government introduced then-Bill C-36 (now, PCEPA) in June 2014.⁹ Joy Smith, the Conservative MP who championed Bill C-36, asserted it was essential to end violence against women and girls in Canada.¹⁰ As I reminded Parliament at the Standing Committee on Justice and Human Rights on July 7, 2014, Smith’s assertion ignores the findings of the Missing Women Commission of Inquiry launched in 2010:

[Then-Bill C-36] also ignores the fact that [Indigenous women] experience institutional and systemic violence as indigenous women, especially the state’s role in making a sex worker vulnerable to violence, such as Chief Justice McLachlin highlighted in her decision. Wally Oppal, in his missing women inquiry report, also recognizes this when he states that the marginalization of women is due to the retrenchment of social assistance programs, the ongoing effects of colonialism, and—I emphasize—the criminal regulation of prostitution and related law enforcement strategies.¹¹

The Bedford decision held that third party violence (i.e., violence from clients or other parties) does not negate the state’s role in making the prostitute vulnerable to this violence. Then-Chief Justice McLachlin writes, The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.¹² This is important to remember in the context of Indigenous women selling and trading sex. Valerie Scott, one of the applicants in Bedford, and other individuals who appeared before the committee argued that PCEPA would create the same harms that the previously struck down provisions created: dead prostitutes.¹³ Ultimately, PCEPA defined prostitution as inherently violent and aimed to abolish prostitution as a means of ending violence against women and girls.¹⁴ Parties on either side of the debate agree on ending violence against women and girls as an overall goal. We disagree on the process.

The Supreme Court of Canada, 2013

In writing for the SCC, former Chief Justice McLachlin held that Provisions violated Amy, Terri-Jean and Valerie’s right to security of person, agreeing with the Ontario Superior Court of Justice.¹⁵ In this section, I will summarize the SCC’s decision and in the next section, I will outline how PCEPA aligns with SCC’s holdings. Despite the importance of this decision for prostitutes, especially marginalized prostitutes, the SCC’s reasoning eventually influenced the Conservative government’s response, then-Bill C-36, now PCEPA. It is this discussion, what the SCC says Parliament can and cannot do, that is rarely mentioned in debates on the validity of PCEPA. I seek to engage in this very necessary discussion. For purposes of this paper, I recognize that other Charter arguments were advanced at the Ontario Superior Court of Justice; however, I will focus solely on the Section 7 analysis.

The SCC held that the Provisions violated the constitution, namely section 7 of the Charter. Section 7 of the Charter reads, Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.¹⁶ In holding that the Provisions violated section 7, the Court focused on the effects of the laws. The Court held:

The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks. (Bedford, para 60)

In holding that each provision violated Section 7, the SCC focused on the effects the laws created in the lives of prostitutes. For the bawdy-house provision, the SCC held that the law prevented prostitutes from working in a fixed place and prevented safer options, like seeing regular clientele at a dedicated space or preventing safe houses for street-based prostitutes.¹⁷ For the living on the avails provision, the SCC held that the law prevented prostitutes from utilizing safety mechanism, like hiring bodyguards, drivers or receptionists and thus, negatively impacted their security of person, engaging Section 7.¹⁸ Finally, and for the communication provision, the SCC held that face-to-face communication is an ‘essential tool’ for enhancing street prostitutes’ safety¹⁹ and such a law prohibited prostitutes from screening prospective clients in order to reduce violence.²⁰ Collectively, the Provisions prohibited prostitutes, whether working indoors or outdoors, from implementing safety measures.²¹

The test to determine whether a law violates Section 7 is three-fold. First, the courts must ensure that section is engaged (in other words, that the section actually relates to the law). One of the following must be engaged: right to life, right to liberty and right to security of person. The SCC held that the Provisions impacted the security of person and thus, Section 7 is engaged.²² Once Section 7 is engaged, the courts must engage in analysis to find whether there is a sufficient causal connection between the impugned law and the prejudice sufficed, including reasonable inferences drawn from the facts.²³ On the sufficient causal connection, the Attorneys General of Canada and Ontario argued that the choice to engage in an inherently risky activity, not the law, was the cause of the prejudice to the Applicants’ security of person.²⁴ The SCC rejected this argument.²⁵ Third and final, the courts must determine whether the violation of section 7 is in accordance with the principles of fundamental justice.²⁶ The principles of fundamental justice are concerned with whether there is a connection between the effect and the object of the law or arbitrariness;²⁷ whether the law challenged goes too far and interferes with some conduct that bears no connection to its objectives, or overbreadthness;²⁸ and whether the effects of the laws are grossly disproportionate to the state’s objective.²⁹ In effect, a law may actually violate section 7, but the state’s objective should not be arbitrary, overbroad or grossly disproportionate to the legislative goal.³⁰

The SCC held that the Provisions violated Section 7 and that these violations were not inaccordance with the principles of fundamental justice. For the bawdy-house provision, the SCC held that the effect of the law was grossly disproportionate to the objective of the bawdy-house provision: the deterrence of community disruption.³¹ For the living on the avails provision, the SCC held the law captures conduct that bears no relation to its purpose, which is to prevent exploitation of prostitutes;³² the law does not accord with the principles of fundamental justice because it is overbroad. For the communication provision, the SCC held that the negative impact on the safety and lives of street prostitutes is a grossly disproportionate response to the possibility of nuisance caused by street prostitution;³³ the law’s effect was grossly disporporionate to its objective.³⁴ As a result, the SCC declared the Provisions invalid and suspended the declaration for one year. In June 2014, the federal government introduced Bill C-36 which is now law, six months after Bedford was released.

Naomi Sayers, Indigenous feminist and lawyer.

Photo credit: Jessica Blain Smith.

While the SCC agreed with Justice Himel, the SCC decision also indicates a significant shift in how the courts should view prostitution. Specifically, the SCC recognized the state’s role in making the prostitute vulnerable,³⁵ which is important to recognize in the context of young Indigenous women’s experiences in the sex trade. For instance, supporters of PCEPA argued the law will help protect vulnerable persons in prostitution, and in particular, Indigenous women and girls,³⁶ but the supporters ignored this holding by the SCC. In other words, since the inception of the prostitution provisions in Canadian law, criminalizing prostitution and targeting prostitution through criminal means has never saved or protected Indigenous women and girls.

The Decision: Parliament Can Regulate Prostitution and Can Deter Prostitution

As outlined by the Bedford decision, there is nothing preventing Parliament from regulating prostitution.³⁷ After confirming that the individual provisions violate Section 7 of the Charter, former Chief Justice McLachlin writes that the Charter violations do not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.³⁸ Former Chief Justice continues, [i]t will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.³⁹ Thus, Bedford acts in a permissive way to provide guidance to Parliament on a new approach to its regulation of prostitution. And Parliament did just that through PCEPA. In the following sections, I outline the ways in which Bedford permitted Parliament to regulate prostitution.

The Bawdy House Provision: Protecting Communities From the Harms of Prostitution

The SCC held that the purpose of the challenged bawdy-house provision was to prevent community harms.⁴⁰ The community harm was identified as nuisance.⁴¹ Regretably, the SCC is silent as to what constitutes harm for prostitutes. The federal government then regulated prostitution as a social harm and as a general harm, more broadly defined; this position on prostitution regulation continued through Bill C-36.⁴² Unfortunately, the federal government ignored how the harms created through criminal regulation of prostitution make prostitutes vulnerable. PCEPA also continues to classify prostitutes as the harm to community, and to women and girls, rather than identifying other kinds of harm, like serial killers and predators who prey on prostitutes, whether or not those prostitutes are marginalized.

The Attorneys General at the SCC attempted to argue that the bawdy house provision was to deter prostitution.⁴³ However, the SCC rejected this argument and held that Parliament could not regulate nuisance at the expense of sex workers’ lives.⁴⁴ Specifically, the SCC held that Parliament could regulate nuisances, but not at the cost of the health, safety and lives of prostitutes.⁴⁵ Regretably, the SCC’s reasoning is silent as to whether Parliament could regulate prostitution with the aim to deter it. Ultimately, this is what Parliament did; it introduced regulations that ultimately aim to deter prostitution, and eventually to abolish prostitution.⁴⁶ In other words, Parliament legislates what the SCC stays silent on—whether Parliament could regulate prostitution with the aim to deter prostitution.

The SCC further held the bawdy-house provision only captured in-calls, where a sex worker sees clients at a fixed location (such as a hotel room) for a period of time.⁴⁷ Since the bawdy-house provision only captured in-calls, the SCC held that the provision’s objective was to combat neighbourhood disruption or disorder and to safeguard public health and safety.⁴⁸ Though the SCC held that Parliament could not regulate prostitution at the expense of sex workers’ lives, it remained silent as to whether Parliament could regulate with a public health and safety objective. Subsequently, Parliament regulated prostitution by introducing C-36 as a bill that would protect communities as well as women and girls from the harms of prostitution.⁴⁹ But Parliament does not define the specific harm; rather, it assumes that all of prostitution creates the harm.⁵⁰ Further, the SCC only held that Parliament could not regulate a sex worker’s health and safety, not the broader public health and public safety.

The Living on the Avails Provision: Targeting the Commercialization of Prostitution

For the living on the avails provision, the Attorneys General attempted to argue that the original purpose of the living on the avails provision was to target the commercialization of prostitution, and to promote the values of dignity and equality.⁵¹ In its reasoning, the SCC rejected this argument but remained silent as to whether Parliament could regulate against the commercialization of prostitution while promoting the values of dignity and equality. Again, Parliament’s legislative response to Bedford targeted the commercialization of prostitution, as well as the institutionalization of prostitution, and sought to protect values of dignity and equality.⁵² Regrettably, PCEPA ignores how the criminal regulation does not protect the dignity and equality of prostitutes.

The Attorneys General also attempted to argue that the living on the avails provision must capture both non-exploitative and exploitative situations.⁵³ The SCC disagreed with this argument and held that the challenged provision was overbroad, and that it, as noted above, violated the principles of fundamental justice for being overbroad.⁵⁴ The Attorneys General argued that the provision must be drawn broadly in order to effectively capture circumstances of exploitation.⁵⁵ In other words, the Attorneys General agreed with the Ontario Court’s reading of circumstances of exploitation."⁵⁶ The SCC further addressed the Attorneys General arguments under the Section 1 analysis in a Charter violation analysis (Section 1 permits such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society). In the Section 1 analysis, the SCC held that the provision captured non-exploitative situations. In holding that the provision was overbroad, the SCC remained silent as to whether such limitations of a new provision would be constitutionally valid. In response, Parliament imposed restrictions on prostitution by drafting narrower provisions that captured only exploitative situations or that provided exceptions to non-exploitative situations.⁵⁷ However, as is commonly (and mistakenly) assumed by non-sex working parties, PCEPA assumes that anyone in the presence of a prostitute is exploiting the prostitute unless evidence points to the contrary. Therefore, the prostitute is likely still forced to work alone.

The Communication Provision: Regulating Street Traffic

The SCC recognized that the objective of the original communication provision was to eradicate prostitution and to curb the exposure of others to prostitution.⁵⁸ The SCC, citing the Prostitution Reference, held that this aim specifically contradicts the Attorneys General arguments that the aim of the three prostitution provisions (as a whole) is to deter prostitution.⁵⁹ The effect of this holding is that the communication provision purpose was to take prostitution off the streets and out of public view.⁶⁰ In making this holding, the SCC focused too heavily on the benefits of the communication provision and its effects in the lives of sex workers.⁶¹ In this focus, the SCC remained silent as to the effects of keeping such a law on the books. And Parliament responded by crafting a response to deter the whole of prostitution via PCEPA.⁶²

Parliament Can Deter People From Entering Prostitution

From my perspective, Bedford is not a progressive decision, and it does not deliver justice for Canada’s most marginalized—i.e. Indigenous women and girls. I believe that the Bedford decision permitted Parliament to do certain things while remaining compliant with Bedford. For example, during a proceeding at the Senate Committee on Legal and Constitutional Affairs, Senator Donald Plett indicates the true intent of PCEPA.⁶³ Responding to Katrina Pacey and Kerry Porth, the lawyer and the chairperson for PIVOT Legal Society respectively (Pivot was an intervenor at the SCC), Senator Plett is recorded as saying, Of course, we don’t want to make life safe for prostitutes; we want to do away with prostitution. That’s the intent of the bill.⁶⁴ As noted above, the SCC decision is silent on the Attorneys General arguments that the aim of the provisions, as a whole, were to deter prostitution. The Attorneys General also argued that the effects of the provisions (in this case the effects are the Charter violation, or the violation of sex workers’ rights under the Canadian Charter of Rights and Freedoms) were a result of the choices made by sex workers, not the laws. Together, the Attorneys General arguments align with Senator Plett’s comments on the intent of PCEPA.

Though the SCC held that Parliament could regulate nuisance, but not at the cost of the health, safety and lives of prostitutes,⁶⁵ the SCC remained silent as to whether Parliament could regulate prostitution with the aim to deter prostitution. Explicitly, Parliament did what the SCC remained silent on: Parliament regulated prostitution with the purpose of deterring people from entering prostitution.⁶⁶ That is, PCEPA defines prostitution as inherently violent⁶⁷; aims to deter prostitution⁶⁸; and provides exceptions to allow persons a choice to engage in prostitution.⁶⁹ These exceptions include allowing prostitutes to employee certain service people, like security guards, as long as the relationship with the prostitute is not exploitative. In the end, Senator Plett’s statement represents how the larger society feels about prostitution and specifically, how society feels about prostitutes, especially marginalized prostitutes, like Indigenous women and girls. That is, these vulnerable parties