Will the Federal Election Improve Sex-Work Laws?

After the Protection of Communities and Exploited Persons Act (formerly Bill C-36) became law last month, the question on many sex workers' minds was "What now?" Well, now, Justin Trudeau is adding his voice to the chorus of criticism surrounding the bill's passing. He says he would look at dialing it down in favour of a more "evidence-based" approach.

Many believe the new laws, which make the purchase of sexual services illegal, will force sex workers into shady areas and into having unsafe interactions with clients. It's also now illegal to communicate for the purposes of "prostitution," and to advertise sexual services. Sex workers, academics, and medical professionals have all decried the bill as likely to harm sex-working people. And a new poll shows Canadians by and large don't like the new laws.

Going forward, there are two ways to change the law: If the Liberals win this year's federal election, they could repeal the law entirely, and either leave all parts of sex work decriminalized or create new laws surrounding the profession. Failing that, and especially if the Conservatives remain in power, the only way to change the law is through another Supreme Court challenge—an arduous process that could take years.

Liberal leader Justin Trudeau has made a number of statements lately in support of women's rights. He says he believes we need a national inquiry into the 1,181 indigenous women who are missing and murdered; he says his members of parliament must vote in favour of abortion rights; and he told CTV that the new sex-work laws must be changed in favour of "evidence-based" laws.

Trudeau, however, doesn't specify what that evidence would look like or how he would change the laws. In his words: "The Supreme Court has said the framework that existed was not protecting vulnerable people and women from violence, and I think that's the lense we need to look at as we move forward on that difficult issue." Despite that, some say he is the only hope for better, safer sex-work laws.

VICE reached out to Trudeau for comment, but we were told he was unavailable. In his absence, we spoke with Dr. Hedy Fry, Vancouver Centre MP and the Liberals' health critic. She said the law cannot be allowed to stand.

"This bill, of course, completely ignores the spirit of the Supreme Court ruling, and in fact, it will increase the risk to sex trade workers," she said over the phone from Vancouver. "If we become government, one of the things we would do is we would not allow this bill to stay as is. We can't let it stand."

She says she can't say exactly how her party would change the bill, though. The key components are ensuring sex workers are not arrested for soliciting or communicating, and ensuring that they have safe, secure workplaces. She says the party would want to provide support for sex workers looking to leave the industry, as well, by putting some funding behind education and training.

"The point," Fry said, "is to ensure that these women can pursue what is, in Canada, a legal activity without criminal sanctions for it."

Now that it's illegal for sex workers to see their clients, or to work anywhere where there could reasonably be a person under the age of 18 present, sex workers are unlikely to go to police, and are instead likely to work in unsafe, dark industrial areas on the fringes of society. Because of their isolation, they are more likely to face violence.

Fry criticized the Conservative Party because it had the option of having the law vetted by the Supreme Court to ensure that it complied with the court's earlier ruling, but opted not to do that.

So far, police don't seem to be enforcing the new laws to their maximum, but more than one sex worker VICE spoke to in recent months has said non-enforcement is not good enough, and decriminalization is the better way.

Laura Dilley is the executive director of the Providing Alternatives Counselling and Education (PACE) Society, a sex-worker-led outreach organization for sex workers located in Vancouver's Downtown Eastside. When asked if she believes Trudeau will work to improve the laws, she expressed cautious optimism:

"Sex work is a divisive topic that I think no political party really wants to take on," she said. "At the end of the day, the issue of sex work will not be addressed until it is deemed politically advantageous to."

That said, Dilley remains hopeful that the Liberals might follow senator Mobina Jaffer's example in recognizing that the current laws are unconstitutional and endanger sex workers' lives.

Some people are already taking official steps to combat the law. Last month, 25 Toronto city councillors asked Ontario Premier Kathleen Wynne to take action. Wynne asked the attorney general to review the law. Alan Young is the lawyer who represented Valerie Scott, Terri Jean Bedford and Amy Lebovitch in challenging the old laws struck down in December, 2013. He says several people have already been in touch with him about the possibility of another court challenge.

Young says he's torn about whether or not he would participate in another battle in court. The last one took years, he worked pro bono, and the result was less than favourable.

"People aren't as eager to retain when it's going to cost them," he said, adding that it could easily take "another seven years."

But when it comes to getting the law off the books, he says another court challenge could be the most "viable" option. In order for another Supreme Court challenge to take place, the attorney general will first have to refer the matter to the provincial court of appeal.

"I don't know Wynne well enough in politics to know whether or not she has a genuine concern, or whether it's infighting between politicians. I'm hoping it's her understanding that this [law] may not be in the public interest."

He says that though the Liberals say they want evidence-based criminal law, and that they will revisit C-36 if elected, this is a "hot-potato issue," so he's not wholly confident they'll tackle it. The contentious nature of sex work is one of the reasons the law has been so dangerous for so long—governments have simply avoided the issue. Either way, he says the laws need to change as soon as possible. The current ones pose a major threat to indoor sex work, which has historically been one of the safest practices.

"It's time for the legislation—whatever you think of johns: good, bad, or indifferent—to change," Young said. "It's the most bizarre dynamics I've seen in criminal law. Never in history has there been a law that has one party legally encourage another party to commit a crime."

Young also addressed the reality that many police forces are choosing not to enforce the new law, though that's not the case in Ottawa. Whether or not the law is enforced, he says we can't be "complacent" and we "can't leave a bad law on the books."

"Non-enforcement is good in the short term, but dangerous in the long term."

As things stand, police could choose to conduct massive sweeps and make mass arrests of both sex workers and their clients at any time.

Katrina Pacey, the executive director of the Pivot Legal Society, says the solution lies in full decriminalization of (adult, consensual) sex work, and that the laws already on the books and applying to all Canadians are enough to ensure sex workers' protection—assuming those laws are enforced. That's not always the case, she says, when it comes to laws surrounding violence, abuse, sexual assault, harassment, and extortion, among others.

She says she's had conversations with the Liberals that make her feel optimistic, though they haven't come out with any specific policies as of yet.

"I think that they understand the potential impacts of the laws. What we haven't seen is a clear commitment."

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