Canadian Sex Workers Deeply Disappointed with Ontario Superior Court Decision

This article was written by an NSWP member in Canada.

On September 18, 2023, sex workers across Canada learned that the Ontario Superior Court upheld all the sex work-specific criminal offences that were challenged in CASWLR v Attorney General (Canada) and that cause grave harm to sex workers. The decision is completely dismissive of sex workers’ experiences, knowledge, and intersecting realities, and ignores the extensive evidence submitted that demonstrates the harms that sex work laws cause.

The case was launched in 2021 when the Canadian Alliance for Sex Work Law Reform (CASWLR) – an Alliance of 25 sex worker rights groups across the country, mainly led by sex workers – along with 6 individual applicants, took the Canadian government to court, seeking to strike down Canada’s sex work-specific offences because they violate sex workers’ constitutional rights to security, health, safety, autonomy, life, liberty, free expression, free association and equality. 

The CASWLR argued that the Protection of Communities and Exploited Persons Act (PCEPA) violates sex workers’ constitutional rights in numerous ways, including:

  • security as they prevent or prohibit conditions required to conduct sex work in safer and more secure settings, exposing sex workers to an increased risk of physical and psychological harm. 
  • liberty as they impose criminal consequences, including surveillance and imprisonment, together with other adverse legal consequences, including loss of immigration status, deportation, and property forfeiture. 
  • personal and sexual autonomy and bodily integrity by violating their right to control their bodies and make related personal and fundamental decisions free from state interference.
  • life as they prevent sex workers from taking reasonable steps to avoid violence that could lead to death.
  • equality as they discriminate and impose disadvantage on the basis of gender and occupational status, particularly for sex workers from multiple intersecting communities, undermining their dignity and reinforcing prejudice.
  • freedom of expression as they prevent or prohibit sex workers from communicating and negotiating conditions to sexual activity; make it impossible or illegal for both the client and the sex worker to establish clear and ongoing consent to the specific sexual activities in which they engage at work; and prevent sex workers from communicating and obtaining relevant and identifiable information from clients that is vital for sex workers to establish safety practices. 
  • freedom of association as they prevent or prohibit sex workers from associating with others (e.g. associating with clients, managers, receptionists, drivers, translators, partners, peers); associating in the pursuit of other Charter rights; and associating with others to advance equitable labour practices and working conditions.

To read the arguments and the legal testimony submitted for this constitutional challenge, go to the CASWLR website: http://sexworklawreform.com/our-constitutional-challenge-to-pcepa/ 

The decision maintains that all sex work-specific criminal offences are constitutional, and that they do not unjustifiably violate any of sex workers’ rights. The court got it wrong in so many ways. 

The court dismisses the relationship between criminalisation, stigma, and violence.

There was an extensive body of Canadian and international evidence submitted to the court that demonstrates criminalisation significantly contributes to stigma and violence. Claiming a lack of “empirical evidence” makes one question the courts’ authentic engagement with the record.

The court also justifies its decision by citing that “sex workers do not have a constitutional right to sell sex.” It is disingenuous to use this as part of the legal reasoning, since CASWLR never argued a constitutional right to sell or buy sexual services. CASWLR’s legal arguments underscored the protection of constitutionally protected rights to bodily autonomy, liberty, expression, association, safety, security, and equality.

The court decision misunderstands, ignores and dismisses the numerous legal consequences of criminalisation. These legal impacts go well beyond arrest and prosecution. They include the inability to work from a fixed indoor location, displacement, surveillance, profiling, temporary detention, personal data collection, seizure of property, and violence from police. Additionally, some sex workers reported that others have been arrested for sex work offences, and in some cases deported as well. These numerous legal impacts of the criminalisation of sex work are central to the experiences of the most marginalised sex workers in Canada. “Sex workers who are Indigenous, Black, migrant, and trans experience the most harmful impacts of the criminalisation of sex work, as we are communities that are already overpoliced and under protected,” added Monica Forrester, one of the individual applicants in the case. “We need sex work laws removed from the Criminal Code so there is at least one less tool law enforcement can use against us.” 

The decision reproduces dangerous myths and stereotypes about sex work and sex workers.

It claims that violence is a “key feature” of sex work, suggesting that sex workers can and should expect violence in their lives. This sends a very strong message to everyone to accept and normalise violence against sex workers. As a result, it serves as an invitation to predators, and an affirmation to institutions and people that violate and discriminate against sex workers. 

Equally disturbing is the court’s patronising conclusion that sex workers do not understand and cannot speak to their own realities, including their lived experiences of criminalisation. The decision claims that if sex workers do experience the harms they allege, it is simply because “sex workers don’t understand the law” - as if the consequences of criminalisation are ‘”misunderstandings” on the part of sex workers, rather than documented experiences in both community and academic research. 

“Sex workers deserve a decision that recognises the human rights violations they face every day from a criminal law that systematically discriminates, over polices, and under protects all sex workers, particularly those who are most marginalised by that same criminal law,” said Jenn Clamen, national coordinator of the Canadian Alliance for Sex Work Law Reform. 

The legal impacts of this decision will not be felt immediately: sex work remains illegal in Canada, as it has been since the introduction of PCEPA in 2014. It is possible that the decision has raised awareness that sex work in Canada is, indeed, illegal, and that no part of sex work is “legal”. The immunity from prosecution that the court relies on to “protect” sex workers from harm is not, as the CASWLR argues, working. For example, sex workers cannot work from a fixed indoor location because one cannot rent a location to conduct criminal activity. The harms of criminalisation include yet need to be understood beyond arrest and prosecution, something the court completely ignored. 

Socially, this decision has far-reaching impacts. It sends the horrific message that harms against sex workers are “justifiable”, and that the experiences of criminalisation that sex workers report are “trivial” or a misunderstanding. Fighting for credibility and visibility around sex workers’ realities is our biggest fight. 

This is not the end of the fight for sex workers’ rights in Canada, and the Canadian Alliance for Sex Work Law Reform is ready to defend them all the way to the Supreme Court of Canada. The case will go to appeal in 2024.

CASWLR member organisations include: Action santé travesti(e)s et transsexuel(le)s du Québec (ASTT(e)Q); BC Coalition of Experiential Communities (BCCEC); Butterfly Asian and Migrant Sex Work Support Network; HIV Legal Network; Émissaire; Maggie’s Toronto Sex Workers’ Action Project; Maggie’s Indigenous Sex Work Drum Group; PEERS Victoria; Projet L.U.N.E.; PACE Society; Rézo, projet travailleurs du sexe; Sacred (PEERS); Safe Harbour Outreach Project (S.H.O.P); SafeSpace London; Sex Workers’ Action Program Hamilton (SWAPH); Sex Professionals of Canada (SPOC); Sex Workers’ Action Network of Waterloo Region (SWAN Waterloo); Sex Workers of Winnipeg Action Coalition (SWWAC); Sex Workers United Against Violence (SWUAV); Shift Calgary, HIV Community Link; Stella, l’amie de Maimie; Stepping Stone; SWANS Sudbury; and SWAP Yukon.