Post-Bedford

Prostitution criminal law reform

Post-Bedford

Sex work in Canada is indirectly prohibited as certain acts linked to prostitution are made illegal in the Criminal Code. The continued criminalization of sex work causes concern among sex workers themselves, their allies and legal advocates.

According to Kerry Porth, Sex Work Policy Consultant at Pivot Legal Society in Vancouver, BC, “The consensus in the sex work community is that sex work is technically illegal. Sex workers are only offered specific immunity from being charged with some of the (Criminal Code) provisions but they are still sometimes charged with material benefit, procuring, and advertising.”

After years of advocacy, in the 2013 case of Canada (Attorney General) v Bedford, 2013 SCC 72, the Supreme Court of Canada (“SCC”) held that several provisions within the Criminal Code were unjustifiably interfering with constitutionally protected rights of sex workers under section 7 of the Charter of Rights and Freedoms; namely, striking down sections 210, 212(1)(j), and 213(1)(c), and amending s.197(1) of the Criminal Code by removing the word “prostitution.”

Within the year, Bill C-36, The Protection of Communities and Exploited Persons Act (“PCEPA”), was passed, in 2014, reforming prostitution laws by amending the Criminal Code. The new legal landscape continues to focus on directly criminalizing human trafficking, the purchase, solicitation, and procurement of sex, through the Criminal Code, by targeting commercial enterprises (strip clubs, massage parlours, and escort agencies) rather than sex workers directly.

The PCEPA’s purposes are articulated in the Act, which “treats prostitution as a form of sexual exploitation that disproportionately impacts on women and girls. Its overall objectives are to... [p]rotect those who sell their own sexual services; [p]rotect communities, and especially children, from the harms caused by prostitution; and, [r]educe the demand for prostitution and its incidence.”

In dialogue with Porth in June of 2020, she commented that the new legal landscape has re-introduced the laws struck down in Bedford under new legislation and re-enforces the same harms to sex workers as before 2014. Porth further commented that “[s]ex workers continue to face danger under the new rules because their ability to screen clients is impaired as is their choice to work with others and work in indoor locations to improve their safety.”

Until 2013, the SCC precedent was set in the 1990 Prostitution Reference (Reference re ss. 193 and 195.1(c) of the Criminal Code (Man.), [1990] 1 R.C.S.); in which the court sided with the government’s citing prostitution laws as justifiable violations of sex workers’ Charter rights. It seems the difference, in Bedford, was linked to political and societal evolution; in that, sex workers’ security of the person was more strongly weighed in favour of the sex workers in 2013.

Although the law has been reformed in light of Bedford, according to Pivot Legal Society, similar harms are perpetuated in that sex workers are put at risk because they are unable to engage in sex work safely. The PCEPA is perceived to be a push back by the legislatures in response to Bedford. By contrast, sex workers, legal advocates, and allies, are of the opinion that sex work continues to be effectively criminalized today.

Legal advocacy on behalf of sex workers has set landmark precedent, through Bedford, to uphold the Charter rights of sex workers. Sex workers rights, however, as balanced by the legislatures, continue to be indirectly prohibited through activities linked with sexual exploitation as articulated in PCEPA.

In reflecting on the effect of prostitution criminal legal reform from the 1990s until 2020; the topic remains controversial and complex. The new prostitution rules, post-Bedford, are seen as a set-back among sex workers that discourage their health and safety and reverse the changes they fought for.