Sex-work legal battle leaves women without recourse
“Business as usual” for Ontario police leaves some sex workers unsure about their safety
August 4, 2011 | Ryerson Free Press
The legal battle over sex-work laws went to the Ontario Court of Appeal this month, causing some sex workers and advocates to start asking what will happen next in what they describe as a fight for safer working conditions.
Morgan Page, trans sex-work outreach officer at the 519 Community Centre, is not optimistic. She says she expects the court system to draw out the stay for as long as possible before new, potentially harsher regulatory practices are discussed in the House of Commons.
Page suspects that the stays the government is requesting will be granted “after exhausting as much time as they possibly can…that appeal will be appealed by whoever didn’t win, and it will keep being appealed until it eventually gets to the Supreme Court of Canada where we will have the actual decision.”
That decision may not look as good as sex workers had originally hoped, said Page. “The Harper government is not going to back down all of a sudden. That would be political suicide for them.”
Nikki Thomas is the Executive Director of Sex Professionals of Canada. She seems to agree. “It’s entirely possible we’ll end up with something worse than what we started with but we had no way of knowing that when we started the challenge,” she says. “Back in 2008 there was a lot more uncertainty politically than there is now. We had no idea there would be a Conservative majority at this point…we just have to make sure we’re included in the dialogue and get a chance to participate in the discussion.”
The appeal was held through the week of June 14 to 17. At press time, a ruling has yet to be made, although as of Friday, June 17, a temporary stay on the legislation remains in effect as the justices make their decision. Justice David Doherty, head of the panel of five judges, said, “the stay will remain in effect until we say something different.”
The Crown has requested a new 18-month minimum stay on the current laws, whatever the Court’s decision may be, so Parliament may discuss the issue and come up with a new regulatory system if necessary.
A legislative stay is a decision courts can make after they strike down a law, in order to give the lawyers on behalf of the government time to prepare an appeal or give Parliament time to discuss what new laws, if any, should be put in place. During said time, the previously existing laws remain fully in effect. “In effect all the laws are still in place even though they’ve been ruled unconstitutional,” Page said.
For Page, while the original ruling on Sept. 28, 2010 may have felt like a breakthrough, a lack of education around the stay and what it means for sex workers left many women vulnerable. “A lot of the sex workers we serve…were quite confused about what this decision meant and what a stay was,” she said. “There were quite a few people that I worked with who seemed to be under the impression that everything was completely legal and they didn’t have to worry about police anymore. That’s definitely not the truth.”
After an initial sense of confidence, however, Page said her clients are newly cautious. “By now most of them have definitely got an understanding that the police are still a threat out there and are still going to arrest them.”
Page believes that charges against sex workers in her community over the past two years have been on the rise. “There has been an increased police presence in the village and on the stroll, so much so that the traditional stroll at Homewood and Maitland is basically no longer in use by trans sex workers,” she said.
She points to new boundaries imposed on sex workers charged with solicitation or communication for the purpose of prostitution. For example, sex workers charged with public communication are often asked to agree not to enter the area from Bloor to Queen and Yonge to Sherbourne, Page explained. That’s the entire gay village—which prevents them from being able to access their strolls. These boundaries also, however, prevent sex workers from accessing the community services and programs often nearby, for fear of getting arrested.
Thomas points out that the legal complexity of the issue, however, is more nuanced than the law merely remaining in place. “Police…are still going out and still arresting people on charges that would not be pursued at the trial level,” she said. “There’s no judge in the entire country who’s going to pursue with charges against someone for communication at this point, when the law is currently being reviewed by a higher court.”
Thomas says, “Justice Himel’s decision effectively neutralized the laws in terms of being able to prosecute them, but people can still be charged with those laws. And what police will do is they’ll target the most vulnerable and the least informed.”
Police in Ontario continue to arrest people on prostitution-related charges. Just two months ago, London police officers arrested two men and charged them with keeping a common bawdy house. Meanwhile, in Metro Vancouver, RCMP officers raided and closed two local massage parlours only weeks after Himel’s September 28 decision was made, a move that sex advocate Susan Davis said was a response to the Ontario victory.
Toronto Police Services spokespeople could not answer questions from the Ryerson Free Press about the boundary programs imposed on sex workers or whether they continue to arrest sex workers and clients at press time. Detective Paul Gauthier of Special Victims Services, however, shared his perspective on the ruling.
Special Victims Services is a special branch of the Toronto Police Services that responds to the needs of victims of crime who are involved with the sex trade. While often sex workers may have broken the law, through this arm of the Service, Gauthier explains, “we look at the more serious of the offenses, generally the offenses that we get are sexual assault, harassment, robbery, that sort of thing.”
Gauthier is concerned that a loss of the legislation against living on the avails of prostitution will make it more difficult to prosecute pimps who are exploiting young women. “If we lose the living on the avails charge, that…makes it very difficult for us to enforce against pimps.”
Gauthier notes that “generally the way the pimps operate is they recruit girls who are often underage and exploit them. Often times they make them work against their will and make them work in dangerous surroundings, keep all of their money, that sort of thing.”
Robbery, extortion, child abuse, and withholding income are all already illegal in Canada.
When asked if removal of the laws may make it more difficult for him to respond to victims who are also sex workers, Gautier says, “right now, some people who are involved in the sex trade seem to think they are committing an offense so there might be a bit of fear in reporting, whereas if the laws are struck down they may not feel those repercussions so they may be more willing to come and speak with us.
“However, I think most people—at least the ones who’ve been doing this for some time—understand that they’re not going to be charged if they’re the victim of a crime… and will report to us anyway.”
As a Supreme Court appeal continues to approach with each legal step, advocates also begin visioning their hopes for the future. Thomas would like to see a system of minimal regulation, where strict laws over licensing and red light districts do not push independent sex workers further underground. She says she’d like to see a system in which independent sex workers can work alone or within small groups, quietly, within their own communities.
Thomas is fiercely opposed to red light districts or bureaucratic regulation practices. She points out that red light districts not only “segregate and ghettoize [sex workers],” but are “really not fair to the people who live in that area…to force them to have all of the prostitution conducted in Toronto all of a sudden concentrated in an area that they live in, when they may not be interested in having it around.”
Page also hopes that “having their work not criminalised will hopefully help begin ending the stigma around sex work…which keeps people who are trying to exit sex work or pursue other work in addition to sex work from doing so.”
However, “The reality is a lot of women will still do street based work and it will still be dangerous,” Page said. She’d like to see more government programming “addressing the inequalities in people’s lives that make people rely on survival based sex work.”