Is the Supreme Court Ignoring Sex Workers? | The Tyee
The law assumes they’re victims, ignoring their agency and labour.
thetyee.ca
The Supreme Court of Canada will soon hear a case, R v. Kloubakov, in which two men charged with financially benefiting from sex work are claiming the charges violate their Charter rights.
The accused worked as drivers for sex workers in Calgary. A court in Alberta found them guilty of benefiting financially from prostitution and being parties to procuring women into the sex trade. They argue that Canada’s sex work laws criminalize people who work with sex workers in non-exploitative situations, and are therefore unconstitutional.
While the appellants in this case are not sex workers themselves, the outcome greatly impacts sex workers and their rights because it could, among other things, undermine their security and ability to put in place safety measures. Migrants arrested under these laws also face the prospect of loss of status, detention and deportation.
Nevertheless, the Supreme Court has chosen to exclude a national coalition of 23 sex worker organizations, the Canadian Alliance for Sex Work Law Reform, and two organizations that work with migrant sex workers (the Migrant Workers Alliance for Change and the Canadian Association of Refugee Lawyers).
The court has concluded their views are irrelevant to the case at hand. This exclusion rehearses Canada’s longer history of excluding those connected with sex work based on race, gender and immigration status.
This case centres on the procurement and material benefits provisions in Canada’s criminal code. They are part of the Protection of Communities and Exploited Persons Act, which was passed in 2014 after the Supreme Court struck down previous provisions targeting sex work.
PCEPA criminalizes “everyone who procures a person 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 agency and labour. While being a sex worker is not directly made an offence, the law criminalizes the purchase of sexual services and thus renders illegal all commercial transactions for sex. Activists have argued that doing so has driven sex work further underground.
Sex workers, and those wishing to purchase sexual services, must avoid police for fear of detection, apprehension and in the case of migrant women, deportation.
Going underground means sex workers are at amplified risk of exploitation and physical harm because they have reduced bargaining power and cannot use safety measures, such as hiring third parties or implementing certain vetting and safety protocols in the spaces they would like to use, for fear of attracting the attention of police.
CASWLR argues that the law’s criminalization of sex workers and third parties replicates and even exacerbates the harms of the former laws that the court found violated sex workers’ Charter rights to security of the person.
The court, however, has decided it will not be considering this aspect at all and has excluded the only two organizations that work with migrant sex workers. The court did grant intervener status to some organizations who will do a reasonable job in detailing some of the harms of the laws. However, none are sex worker-led and none represent migrant sex workers who may experience additional harms.
The Supreme Court denied intervener status to these organizations because they perceived their interventions as providing new information that would unduly expand the case. Denying standing to these organizations, however, has the ultimate effect of not hearing from those directly impacted by the laws being examined.
Courts are meant to consider the wider implications of how laws are interpreted, implemented and the potential ways they affect others. This is particularly important in constitutional challenges where it is both foreseeable and expected that legal decisions will have widely ranging effects on multiple groups.
Thanks, Mandrill, for the link and summary.