Canada’s Flawed Sex Trade Law

EDMONTON, Alberta — In December, a new prostitution law came into force in Canada. The Protection of Communities and Exploited Persons Act, or Bill C-36, criminalizes the purchase (but not the sale) of sexual services, and restricts the advertisement of sexual services and communication in public for the purpose of prostitution. The bill replaces legislation, overturned in December 2013 by Canada’s Supreme Court, which criminalized acts associated with selling sexual services. In its 2013 ruling, the Court deemed these laws in violation of sex workers’ rights to safety and security, and gave Prime Minister Stephen Harper’s Conservative government one year to implement new legislation.

Many hoped this would be Canada’s chance to emulate New Zealand, where the buying and selling of consensual sex between adults was decriminalized in 2003, and provisions were introduced to protect sex workers’ health and safety. In New Zealand, valid certificates are required for prostitution businesses with more than four employees; their location and advertising may be regulated. Five-year reviews found no evidence that decriminalization had increased the size of the sex industry. Sex workers reportedly found it easier to refuse a client, felt more protected from attacks and safer to report abuse. And the health benefits are clear: A 2012 United Nations study concluded that New Zealand’s approach increased “access to H.I.V. and sexual health services and is associated with very high condom use rates.”

Instead of implementing such proven policies, Bill C-36 has — as Justice Minister Peter MacKay, who sponsored the legislation, told the Senate Committee in September— effectively made prostitution “illegal for the first time in Canada.” Not only does it reproduce many of the statutes struck down by the Supreme Court in 2013, it goes further, making it a crime to purchase sexual services. Ontario’s premier, Kathleen Wynne, has expressed “grave concern,” and has rightly asked her province’s attorney general to rule on its constitutionality. But the laws are here to stay, at least for a while: Alan Young, lead counsel on the 2013 case, estimates that it could take five to six years for a new challenge to reach the Supreme Court.

In Canada, it remains a crime to profit from the prostitution of others, or to communicate in certain public spaces for the purpose of selling sex. But Bill C-36 now makes it illegal to buy sex, and for third parties to advertise the sale of sexual services in newspapers or online. Generally, the result of laws like these is to displace street-based sex workers to remote, often unsafe areas, so clients may avoid police detection. Even those with access to private spaces will likely feel more threatened: Under Bill C-36, it is illegal to buy sex anywhere, including indoors. And the restrictions on advertising and communication limit sex workers’ ability to screen clients or negotiate transactions. Of course, this was entirely the point. “We don’t want to make life safe for prostitutes,” Senator Donald Plett, a Conservative, told the Senate in September, “we want to do away with prostitution.”

If abolishing prostitution is the goal for some Canadian legislators, precedent suggests that the new measure is unlikely to succeed. Bill C-36 follows the example of Sweden, Norway and Iceland, where the purchase — but not the sale — of sex was criminalized in legislation passed since the late 1990s. Proponents of this so-called Nordic model (also implemented, in various forms, in South Korea, Finland, Israel and Britain), argue that sex industries follow market principles of supply and demand, hence targeting demand will decrease supply.

But there is hardly a consensus on this. Advocates of the Nordic model note that criminalizing the purchase of sex reduced street prostitution in Sweden. In 2008, however, the Swedish National Board of Health and Welfare reported that, though prostitution rates dropped immediately following the implementation of criminalization legislation in 1999, they rebounded by about two-thirds within a few years. A 2012 report by the Global Commission on H.I.V. and the Law found that Sweden’s “sex trade remains at pre-law levels”; it “simply moved further underground,” or online.

And the Nordic model has often-damaging effects on sex workers’ health and safety. A 2010 review published by the Swedish Institute found that criminalization resulted in heightened harassment of sex workers, who felt that they were “hunted” by the police, and treated as “incapacitated persons” whose “wishes and choices are not respected.” The 2012 Global Commission report found that criminalization makes their lives “less safe and far riskier in terms of H.I.V.”

In Canada, these effects will be most deeply felt by indigenous women. Overrepresented in the country’s street-based sex industries, they experience higher rates of stigmatization and violence, and are already inadequately protected by the police: In 2012, British Columbia’s Missing Women Commission of Inquiry cited the poor relationship between the police and sex workers, influenced by Canada’s prostitution laws, as a factor in disappearances and murders of indigenous women. The new legislation will likely worsen the situation.

Bill C-36 allocates $17 million over five years — a relatively small amount — to helping sex workers leave prostitution. But this use of funds will do little to improve the lives of sex workers, and nothing for those who can’t, or don’t want to, quit. Rather than attempting to do away with prostitution entirely, Canada should, like New Zealand, devote its resources to ensuring that sex workers have adequate access to healthcare and other social services, and are not trafficked or otherwise exploited.

In Canada, the passage of Bill C-36 has sparked resistance. Vancouver has indicated its intent to prioritize municipal sex-work guidelines adopted in 2013, whereby enforcement is “a last resort.” NOW magazine, a Toronto weekly, has refused to comply with the advertising ban; if the government counters, this could lead to the first test of the statute’s constitutionality.

At Senate hearings in September, Kerry Porth, a former sex worker and chairwoman at the Pivot Legal Society, a Canadian advocacy group, argued that Bill C-36 would lead to “more exploitation, more violence, and more desperation.” Sadly, instead of taking this opportunity to pass truly meaningful reforms, Canada has merely replaced one flawed policy with another.