Laura Giroux
In 2013, the Supreme Court of Canada ruled certain laws criminalizing prostitution to be unconstitutional in the landmark case Canada v. Bedford. Yet in 2014, a new bill called the Protection of Communities and Exploited Persons Act was passed that re-criminalized various aspects of sex work in spite of the Supreme Court ruling in the Bedford case just one year prior. The Protection of Communities and Exploited Persons Act introduced a provision that criminalizes the act of purchasing or communicating in order to obtain sexual services in any place. It also includes a provision that criminalizes sex workers who solicit their services in certain public places. The provisions supposedly have the purpose of reducing the demand for prostitution through its denouncement and prohibition. The legislation believes that denouncing prostitution will assist in the protection of human dignity and equality. Yet, the provisions threaten the safety of sex workers by forcing the industry of prostitution to operate in secluded, unsafe areas.
Not only do the provisions threaten the relative physical safety of sex workers, but they further stigmatize and oppress sex workers by forcing them to either quit sex work or work in less safe areas to avoid being arrested. Furthermore, by criminalizing communicating in order to obtain sexual services, the initial interaction between the sex worker and the potential client is rushed which may reduce safety-enhancing measures. These provisions also have a negative impact on the relationship between sex workers and the police, further hindering the safety of sex workers should they experience abuse or assault and wish to file a police report.
Both provisions do not abide by the court’s concern in Bedford and should thus be deemed unconstitutional. As noted in Bedford, the right of “security of the person” guaranteed in the Canadian Charter of Rights and Freedoms can limit the criminal law power of the government. Like the laws considered in Bedford, the current provisions infringe upon sex workers’ rights to the security of the person and should thus be deemed unconstitutional. As in Bedford, the effects of the new provisions are grossly disproportionate to their purposes. The law’s purpose of reducing prostitution is likely unrealistic given that there will always be a demand for purchasing sexual services; the laws will merely force the industry underground, reducing the safety of those involved. One’s security of the person is of greater important than the government’s desire to deter prostitution.
The law’s purpose of protecting human dignity and equality is a valid purpose but would be better achieved by introducing measures to help keep sex workers safe, such as by implementing laws that target the real problem: those who exploit or abuse sex workers and those who facilitate non-consensual prostitution such as human traffickers. With the current provisions, sex workers are stigmatized, treated as criminals, and denied security of the person; thus, the current provisions are unconstitutional and should be abolished. When developing new laws regarding prostitution, policy makers should include sex workers in the decision-making process to ensure the laws are aimed at safety rather than at criminalizing the sex worker.
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