Beyond Exploitation and Trafficking: Canadian Critical Perspectives on Sex Work

The Supreme Court of Canada unanimously agreed, on 20 December 2013, to strike down as unconstitutional the Criminal Code of Canada’s three statutes regulating adult prostitution: keeping, transporting someone to, or being an inmate of a common bawdy house (sections 210 and 211); procuring or living on the avails of prostitution (section 212); and communicating in a public place or a place open to public view for the purposes of prostitution (section 213).¹ The court rendered this landmark decision because all nine justices on Canada’s highest court were convinced that the legislation, singly and together, created an intolerable situation for those providing sexual services by making it nearly impossible for sex workers to carry out their legal occupation safely. The legislation therefore violated Section 7 guarantees of Canada’s Charter of Rights and Freedoms:

Section 7. 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.²

In making this decision, however, the court provided Parliament with a one year grace period in which to implement alternative legislation that would not similarly breach Charter rights and freedoms. The federal Conservative government reacted quickly and emphatically to this decision, tabling a new proposal in the House of Commons on 4 June 2014. Bill C-36, The Protection of Communities and Exploited Persons Act, has been under review and revision since that time and will almost certainly be passed into law during the fall 2014 sitting of the House of Commons. The proposed legislation does not criminalize the selling of sexual services, but it criminalizes the purchase of sexual services in any circumstances. It does criminalize communication for the purpose of offering or providing sexual services in public or open to public view where persons under 18 might reasonably be expected to be present. The proposed law also criminalizes third parties who receive a “material benefit” from prostitution (allowing likely exceptions for spouses, roommates, children, other dependents who do not work in the sex industry, and landlords who rent their premises at market value), and procuring another person for the purpose of providing sexual services. It includes sweeping new provisions for the prohibition of advertising sexual services. While selling sexual services is, on the face of it, not a criminal offence, it will be extremely difficult to carry out a legal business, particularly given that potential clients face the risk of criminal charges. Together, the proposed legislation actually surpasses previous legislation’s scope and potential impact, leaving little doubt that it could not withstand a Charter challenge. Consistent with the “get tough on crime” agenda that has been a hallmark of the Conservative government since they were first elected in 2006, Bill C-36 advances a conservative moralism under the auspices of protecting the vulnerable from exploitation.³

While the three texts under review were published prior to the Supreme Court decision and the subsequent introduction of Bill C-36, the scope and implications of the proposed legislation, as well as the rationale behind it, mean that these texts are at least as relevant and important as they were when the authors were motivated to create them.

Van der Meulen, Durisin, and Love’s Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada brings together an impressive collection of sex workers, academics, and activists to explore the multiple dimensions of sexual labour. The three editors themselves span these categories, yet have managed to seamlessly...