The accused worked as drivers for sex workers in Calgary. A court in Alberta found them guilty of benefiting financially from prostitution and being parties to procuring women into the sex trade. They argue that Canada’s sex work laws criminalize people who work with sex workers in non-exploitative situations, and are therefore unconstitutional.
While the appellants in this case are not sex workers themselves, the outcome greatly impacts sex workers and their rights because it could, among other things, undermine their security and ability to put in place safety measures. Migrants arrested under these laws also face the prospect of loss of status, detention and deportation.
Nevertheless, the Supreme Court has chosen to exclude a national coalition of 23 sex worker organizations, the Canadian Alliance for Sex Work Law Reform (CASWLR), and two organizations that work with migrant sex workers (the Migrant Workers Alliance for Change and the Canadian Association of Refugee Lawyers.
The court has concluded their views are irrelevant to the case at hand. This exclusion rehearses Canada’s longer history of excluding those connected with sex work based on race, gender and immigration status.
Canada’s sex work law
This case centres on the procurement and material benefits provisions in Canada’s criminal code. They are part of the Protection of Communities and Exploited Persons Act (PCEPA), which was passed in 2014 after the Supreme Court struck down previous provisions targeting sex work.
PCEPA criminalizes “everyone who procures a person to offer or provide sexual services” and anyone “who receives a financial or other material benefit” from sex work, with certain exceptions.
The law assumes that sex workers are victims and ignores their agency and labour. While being a sex worker is not directly made an offence, the law criminalizes the purchase of sexual services and thus renders illegal all commercial transactions for sex. Activists have argued that doing so has driven sex work further underground. Sex workers, and those wishing to purchase sexual services, must avoid police for fear of detection, apprehension and in the case of migrant women, deportation.
Going underground means sex workers are at amplified risk of exploitation and physical harm because they have reduced bargaining power and cannot use safety measures, such as hiring third parties or implementing certain vetting and safety protocols in the spaces they would like to use, for fear of attracting the attention of police.
CASWLR argues that the law’s criminalization of sex workers and third parties replicates and even exacerbates the harms of the former laws that the Court found violated sex workers’ Charter rights to security of the person.
As a sex worker-led umbrella organization, CASWLR members have lived expertise and intimate knowledge of how these laws still harm sex workers in ways that can crucially inform the question of whether the laws are constitutional.
Migrant sex workers
Aside from direct criminalization, migrant sex workers may face additional and distinct consequences under immigration laws if they are charged, convicted or merely under criminal investigation. Migrant sex workers could lose their status in Canada, be detained and deported and be barred from re-entering the country. Further, it is not just sex workers themselves who are affected. Migrant third parties and their family members’ immigration status and future could be imperilled as well.
These potential consequences may drive migrant sex workers to do their work in unsafe conditions to avoid detection by police and immigration enforcement. Sex workers are effectively forced into these precarious conditions because of the existing laws.
In our view, loss of immigration status and deportation for engaging in non-exploitative, consensual activity are consequences of the current law that are not justified under the Charter because of the risks of violence and other harms that arise from avoiding detection.
The Court, however, has decided it will not be considering this aspect at all and has excluded the only two organizations that work with migrant sex workers. The Court did grant intervener status to some organizations who will do a reasonable job in detailing some of the harms of the laws. However, none are sex worker-led and none represent migrant sex workers who may experience additional harms.
The Supreme Court denied intervener status to these organizations because they perceived their interventions as providing new information that would unduly expand the case. Denying standing to these organizations, however, has the ultimate effect of not hearing from those directly impacted by the laws being examined.
Courts are meant to consider the wider implications of how laws are interpreted, implemented and the potential ways they affect others. This is particularly important in constitutional challenges where it is both foreseeable and expected that legal decisions will have widely ranging effects on multiple groups.
History of migrant exclusion
Unfortunately, this exclusion is tied to the history of discrimination and stigmatization of Asian migrant sex workers, ostensibly for their own protection. Though many Canadians may have heard of Canada’s law that restricted Chinese immigration, including the infamous Head Tax, many may not know that it explicitly barred “any Chinese woman who is known to be a prostitute.”
This law took influence from the very first immigration ban in the United States, the 1875 Page Act. This law barred the immigration of women from “any Oriental country” if they were “imported for the purposes of prostitution.” The exclusion and policing of Asian sex workers was justified by ideas of carceral humanitarianism, which proposes that exclusion and policing are a necessary way of protecting people from being trafficked.
These so-called safety measures did not achieve either goal — in the past or present. Migrant sex workers who are directly targeted and harmed by the law were never directly asked what they desired or whether they needed saving.
We see these long-standing patterns at work again today with the Supreme Court’s exclusion of migrant sex workers (and other sex workers) in R v. Kloubakov. The court is demonstrating that it has clearly not learned from history.
When courts deny those most impacted by the law a hearing, they do not take into account all of the considerations they should. Cases can take years to reach the Supreme Court. When courts do take up the task to review law, it should welcome those directly affected by it, particularly when there are groups that have been traditionally marginalized from political and legal power.
For courts to be effective, they must hear from those who can best explain how their rights are violated and excluded from the discussion. Trust in our justice system and our laws are diminished when those directly harmed by it have no say and no recourse.
Vincent Wong, Assistant Professor of Law, University of Windsor and Jamie Chai Yun Liew, Shirley Greenberg Chair of Women and the Legal Profession and Professor, Faculty of Law, L’Université d’Ottawa/University of Ottawa
This article is republished from The Conversation under a Creative Commons license. Read the original article.
