Advocates argue for full decriminalization of sex work in Canada as landmark hearing begins

A coalition of sex workers and advocacy groups began presenting arguments on Monday in a landmark Superior Court hearing that they hope will lead to the full decriminalization of sex work in Canada.

Over the next five days, the groups will make their case in a downtown Toronto courtroom that sex workers are being harmed and exploited, and that they are not protected under the current laws.

In 2013, the Supreme Court of Canada ruled in Canada v. Bedford that three criminal prohibitions on prostitution were unconstitutional because they caused harm to sex workers and contravened sex workers' rights to liberty and security. 

The groups argue that instead of recognizing sex workers' rights and well-being by decriminalizing sex work, the federal government created a set of criminal laws called the Protection of Communities and Exploited Persons Act (PCEPA) that reproduce those same harms. 

"PCEPA criminalizes communicating to sell sexual services in public, communicating to purchase sexual services in any context, facilitating or receiving a benefit related to the purchase of someone else's sexual services, and advertising sexual services," the coalition argues. 

"Sex workers are criminalized, stigmatized and discriminated against under PCEPA," the groups say.

The coalition argues that many sex workers are:

• Forced into isolation.
• Exposed to the risk of eviction and unable to access safe indoor workplaces.
• Prevented from meaningfully communicating with clients to access information related to their health, safety, and ability to refuse or consent to sex.

Monica Forrester, an outreach co-ordinator at Maggie's Sex Work Action Project and a plaintiff in the case, says sex workers constantly face "dangers" in their work and in their personal lives.

"I can speak from my own experiences that these laws just enforce the criminalization," Forrester told CBC Toronto.

"When seeking safety … it's just overlooked, sex workers are not believed, we're not considered priority when it comes to violent situations.

"So, we need laws that are decriminalized and that sex workers to work with lawmakers and the government to keep people safe," Forrester added.

They could remove sex work from the Criminal Code and start to think about other mechanisms beyond the Criminal Code that can actually help to protect sex workers.- Jenn Clamen, coordinator, Canadian Alliance of Sex Work Law Reform

Sex Workers' Action Program (SWAP) Hamilton is one of 25 plaintiffs in the lawsuit.

SWAP's executive director Jelena Vermilion was among a group of protesters who gathered outside the court in Toronto while the hearing was underway.

Vermilion says the laws currently that criminalize the sale of sexual services make it unsafe for people who are in the sex industry to do their work, negotiate condom use with a client or to negotiate what sexual acts are going to occur during an appointment.

"In order to do so you have to communicate about sexual services, and that's a crime," Vermilion said.

"Similarly, we have situations where people who work indoors out of their apartments are put at risk of eviction because the law is erroneously criminal and therefore landlords who are unscrupulous use this  ..  in order to say illegal acts are occurring in the unit [and] evict them.

"It causes a vulnerability for sex workers who work out of their homes who are unable to remain in their homes simply because of this law, which is unconstitutional," she added.

Vermilion says parliament has the ability to change laws immediately, but has chosen not to. 

"There's also the possibility of a federal member bringing forth a member's bill proposing the decriminalization of the sex trade and nobody has had the courage to do so, so sex workers are taking the government to court to fight for their rights," she said.

Jenn Clamen, the Montreal-based national coordinator for Canadian Alliance of Sex Work Law Reform, says the government should table a bill for total decriminalization.

"They could remove sex work from the Criminal Code and start to think about other mechanisms beyond the Criminal Code that can actually help to protect sex workers," Clamen said. 

"They could also rely on laws of general application to actually address violence that sex workers are experiencing because the sex work laws don't protect sex workers from that violence they're experiencing."

Clamen says sex workers are part of the community and when communities and societies decide that certain people aren't deserving of rights or don't belong "because they're doing something that might be morally apprehensible to one person, that's a problem." 

"But it's a problem for everybody. Sex workers are everywhere and people are accessing sex workers everywhere for services and it should be important when we have a group of people who are being denied their human rights, that should be important to everybody," Clamen added.