Supreme Court of Canada ignores sex workers in sex work case

The Supreme Court of Canada will soon hear a case, R v. Kloubakovin which two men accused of financially benefiting from sex work claim the charges violate their Charter rights.

The suspect worked as a driver for sex workers in Calgary. An Alberta court found them guilty of financially benefiting from prostitution and involving women in the sex industry. They argue that Canada’s sex work laws criminalize people who work with sex workers in non-exploitative situations and are therefore unconstitutional.

Although the appellants in this case are not sex workers themselves, the outcome has major consequences for sex workers and their rights, as it could undermine, among other things, their safety and their ability to take safety measures. Migrants arrested under these laws also face the prospect of loss of status, detention and deportation.

Nevertheless, the Supreme Court chose 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 concluded that their views are not relevant to the present case. This exclusion repeats Canada’s longer history of excluding people associated with sex work based on race, gender and immigration status.

Canadian sex work law

This case centers on the acquisition and material benefits provisions of the Canadian 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 against sex work.

PCEPA criminalizes “anyone who procures someone 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 freedom of choice and labor. Although it is not directly punishable to be a sex worker, the law criminalizes the purchase of sexual services, making all commercial transactions for sex illegal. Activists have argued that this has driven sex work further underground. Sex workers and those seeking to obtain sexual services must avoid police for fear of discovery, arrest and, in the case of migrant women, deportation.

When sex workers go underground, they are at greater risk of exploitation and physical harm because they have reduced bargaining power and cannot take advantage of safety measures, such as hiring third parties or implementing certain control and safety protocols in the spaces they prefer want to use it, out of fear of danger. attract the attention of the police.

CASWLR argues that the law’s criminalization of sex workers and third parties replicates and even exacerbates the harm to the safety of the person caused by the previous laws, which the Court found to be contrary to the Sex Workers’ Charter.

As a sex worker-led umbrella organization, CASWLR members have expertise and deep knowledge of how these laws continue to harm sex workers in ways that could be critical to whether the laws are constitutional.

Migrant sex workers

Beyond direct criminalization, migrant sex workers may face additional and distinct consequences under immigration laws if they are charged, convicted, or merely criminally investigated. Migrant sex workers can lose their status in Canada, be detained and deported and denied entry into the country. Moreover, it is not only sex workers themselves who are affected. Third party migrants and the immigration status and future of their family members could also be at risk.

These potential consequences may drive migrant sex workers to work in unsafe conditions to avoid detection by police and immigration enforcement. Sex workers are essentially forced into these precarious conditions because of existing laws.

In our view, loss of immigration status and deportation for engaging in non-exploitative, consensual activities are consequences of the current law that are not justified under the Charter because of the risks of violence and other harms arising from avoiding detection.

However, the Court decided not to consider this aspect at all and excluded the only two organizations working with migrant sex workers. The Court has granted intervenor status to a number of organizations, which will do a reasonable job in detailing some of the harms of the laws. However, none are run by sex workers and none represent migrant sex workers who may experience additional harm.

The Supreme Court denied these organizations intervenor status because they believed that their interventions provided new information that would unnecessarily expand the case. However, the ultimate consequence of denying status to these organizations is that those directly affected by the laws under investigation are not heard from.

The intention is for courts to consider the wider implications of the way laws are interpreted and implemented, and the possible ways in which they affect others. This is particularly important in constitutional issues where it is both foreseeable and foreseeable that legal decisions will have far-reaching consequences for 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. While many Canadians may have heard of the Canadian law that restricted Chinese immigration, including the infamous Head Tax, many may not know that it explicitly excludes “any Chinese woman known to be a prostitute.”

This law was influenced by the very first immigration ban in the United States, the Page Act of 1875. This law prohibited the immigration of women from “any Oriental country” if they were “imported for the purpose of prostitution.” The exclusion and surveillance of Asian sex workers was justified by ideas of carceral humanitarianism, which holds that exclusion and surveillance are a necessary way to protect people from trafficking.

These so-called security measures have achieved neither goal – in the past or in the present. Migrant sex workers who are directly targeted and harmed by the law were never directly asked what they wanted or whether they needed to be rescued.

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 shows that it has clearly not learned from history.

When courts deny a hearing to those most affected by the law, they fail to take into account all the considerations they should be taking. It can take years for cases to reach the Supreme Court. When courts take on the task of reviewing the law, they should welcome those directly affected by it, especially if there are groups that have traditionally been marginalized from political and legal power.

For courts to be effective, they must hear from those who can best explain how their rights are being violated and excluded from the discussion. Confidence in our justice system and our laws diminishes when those directly harmed by them have no agency and no recourse.