n October 3, lawyers in the Ontario Superior Court argued that a piece of legislation ironically called the Protection of Communities and Exploited Persons Act (PCEPA) in fact did the opposite of its namesake by criminalizing aspects of the sex work industry, thereby endangering the lives of sex workers.
Michael Rosenberg was one of the lawyers representing the Canadian Alliance for Sex Work Law Reform (CASWLR) and six applicants including five sex workers, all of whom launched the constitutional challenge against the PCEPA in March, 2021.
Rosenberg spent much of the public hearing's first day of oral submissions citing previous relevant case law, particularly the Supreme Court of Canada's 2013 Bedford decision, which struck down provisions of the Criminal Code relating to sex work as unconstitutional.
Rosenberg also introduced thousands of pages of witness testimony. By the time the hearing ended on October 7, more than 13,000 pages of evidence from sex workers, sex worker-led organizations, and leading researchers were introduced by the applicants. The government's response was delivered on the last two days. The judge is expected to render his decision in six to 12 months.
However, it was outside the court's steps — as the parties broke for lunch — that sex workers and their advocates spelled out what the case was about in plain and simple language: choice and dignity.
"Sex workers have been repeating themselves forever and have been systematically muzzled and erased," said Jelena Vermilion, the executive director of the Sex Workers Action Program Hamilton.
"The state constantly suppresses and economically disadvantages those who do sex work as a means to subvert their own liberation. It is clear sex workers cannot wager on the acceptance of sex work or those who are obsessed with our conditions to change our realities,” Vermilion said. “We keep us safe. And we fight for our own rights, on our own terms."
"We just want the laws to support us and to be able to work with dignity and in safe environments," added Monica Forrester, one of the applicants, in an interview with The Hoser.
"Hopefully people will listen to my testimony and acknowledge my experiences… and realize that… sex workers' lives matter."
System Injustice In Canada
When the Supreme Court struck down criminal code provisions as unconstitutional in 2013 it gave the Federal government one year to come up with better laws, if it chose to do so.
The PCEPA that Stephen Harper's conservative government implemented in 2014 is not just the same, advocates say, but worse as it now criminalizes so-called third parties and clients themselves, creating untenable working conditions.
The PCEPA defines third parties as anyone receiving compensation from a sex worker's labour, facilitating the purchase of someone's services, and advertising for someone else's services. Section 213 of the Act also criminalizes sex workers who communicate in public to sell sexual services, and Section 286 criminalizes all clients.
Legally, Rosenberg and his colleagues argue these offences infringe on sex workers' Charter of Rights and Freedoms, specifically their right to life, liberty and security, to equality and non-discrimination, to freedom of expression, and to freedom of association.
Mutual Aid For Sex Workers
Outside the court, Mina Do, a member of Butterfly: Asian Sex Worker Support Network, explained that contrary to popular belief, and sensationalized by Hollywood and the media, not everyone associating with sex workers is a pimp. They're often colleagues, friends and families helping with everything from translation and bookings to — most importantly — safety.
Sex work "is how we organize our own resistance, and they're an essential support system," Do said. "It's not a crime ring, but rather self-organized mutual aid when other aid is non-accessible or not enough."
By criminalizing the very people who make up this crucial support network, argued Rosenberg in the courtroom, the government has effectively forced many workers to forgo screening processes and make knee-jerk decisions which have put them in dangerous situations and allowed exploitation to flourish. At least seven deaths have been reported by Butterfly since 2014.
In June 2022, a Standing Committee on Justice and Human Rights released a report recognizing that the "health and safety of those involved in sex work is made more difficult by the framework set out by the PCEPA [because it] makes the work more dangerous."
Instead of calling for its repeal, the Committee simply called for increased policing of sex work communities.
University of British Columbia professor Dr. Anna-Louise Crago is the lead author of a 2021 study from the Centre for Gender and Sexual Health Equity. In an interview with Global News, Crago said the study found that 31 per cent of sex workers report being unable and unwilling to call the police in an emergency due to "fear of police detection of themselves, their coworkers and managers."
"We know that one of the most important ways to prevent and address violence against sex workers is to ensure that sex workers have access to emergency assistance, can report violence to police, and that police take swift and meaningful action," Crago said.
"What we're seeing is that the laws are blocking this. And when sex workers' ability to report violence or get assistance is blocked, it can lead to a climate of impunity that fuels and fosters violence against sex workers."
In a translated statement at the rally, one anonymous worker said she had been assaulted three times in a month and "treated like a money machine" by predators who knew she had no recourse. "I can't call the police, and I won't call the police," she said, "because I would rather be robbed than arrested."
For Forrester, the applicant who spoke to The Hoser outside, those experiences hit close to home, as she wondered just "how many more sex workers have to die" for the government to listen.
The Pitfalls Of The End-Demand Model
The PCEPA is predicated on the ‘End-Demand' model, which purportedly seeks to end the demand of sex work by going after those who exploit them.
However, based on what CASWRL coordinator Jenn Clamen says, the End-Demand model is based on an age old trope that divides this community into two groups: human trafficking victims — pushed into sex work by so-called pimps — and those who choose to engage in sex work. “It sends a strong message… that sex workers are undesirable people who must be eliminated from our society," Clamen said at the rally on October 3.
In a follow up email, Clamen says in order to support this argument, the government — through the Crown — has had to "discount the enormous body of research that exists around the harms of PCEPA." Unfortunately, she adds, while the government is "grasping at straws" to support their claims, it is doing it in a way that "tugs at heartstrings and allay unfounded, albeit real fears, that people have about an industry they know little about."
Inside the courtroom, Rosenberg argued that this "bimodal" conception of sex workers ignores the "spectrum of experiences in sex work" that his clients have had. The reality, he said, is that most sex workers — including street workers and escorts — face "very constrained alternatives" in life given "significant barriers imposed by poverty rates, Indigeneity, trans misogyny, immigration status, disability, and a variety of other factors" that have nothing to do with personal morality.
"I'm not a trafficked victim. I just want to work," said the worker through the translator at the rally. "I am using my own hands, my own body to support myself and my family."
"I just want to work. Why do you keep saying I am a victim of trafficking? I just want to survive and work. I am treated as the mud on the floor. Anyone can step on me. I can't speak out because I'm treated as illegal, and so they exploit me. Please understand that sex work is work, and sex work should not be a crime. Please, listen to us."
Liberal Government Failure
Despite their promise and mandate to review the PCEPA in five years, Justin Trudeau's Federal Liberal government failed to do so until after this challenge was launched last year. But as important as the constitutional challenge is, it is only a first step. If successful, they will then have to go to the Court of Appeals, and from there, the Supreme Court of Canada. That can take years, as it did with the Bedford case.
Yet, unlike Bedford, where people were defending themselves against specific third-party offences (procuring, material benefit, advertising), this challenge takes on all of the sex work-specific offences together.
It is important to note that, even if the challenge is successful at the highest level, many in sex work will continue to be criminalized by other laws, including immigration provisions prohibiting migrants from working in the sex industry. Others, including those living and working in public spaces — namely Black, Indigenous and trans sex workers, and those who use drugs and people with HIV — will likewise continue to be profiled and criminalized by police and stigmatized by society.
Nevertheless, this case comes at a time when the dial is turning, however slowly. For instance, this is the first case led by sex-workers. "No matter what anyone's personal opinion is about our work, whether or not they deem it or call it 'decent' work, we will not be denied our autonomy, and we will fight laws that violate our human rights," Do said.
