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Prostitution law reform in Canada: Full decriminalization only option

Monday, August 30, 2021 @ 12:53 PM | By Nawshin Ahmed


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Nawshin Ahmed
As discussed in the first article in this series, Bill C-36 reverses the constitutional progress of Canada (Attorney General) v. Bedford [2013] 3 S.C.R. by complicating the procedure of prostitution and endangering the lives of sex workers. In light of these limitations, the Parliament must amend this legislation using the decriminalization model of prostitution policy.

All laws restraining sex work will be removed and prostitution will be governed through specific regulations instead of the Criminal Code after decriminalization. The practices within the sex industry will be regulated by territorial authorities in local communities and brothels will be inspected to ensure that government standards are met with the aim to create safer working conditions for prostitutes.

Sex workers will be protected from violence and exploitation under the labour laws considering that prostitution will be deemed a legitimate business upon decriminalization. They will have the same civil rights and liberties as any other occupational group. As a result, sex workers may no longer hesitate to report violence experienced during the course of their work.

Decriminalizing all aspects of sex work may also decrease, if not eliminate, the stigma attributed to sex work and the marginalization of prostitutes, as evident in New Zealand. The same prostitution-related activities that were criminalized in Canada until 2013 were illegal in New Zealand before the implementation of the Prostitution Reform Act — legislation that decriminalized all activities associated with prostitution — in 2003. After the law reform, sex work was no longer perceived as an immoral act and prostitutes were not considered deviant. As the moral perception of sex work changed, the marginalization of sex workers reduced.

The implementation of the Prostitution Reform Act also facilitated access to justice for sex workers and improved their relationship with law enforcement agencies. Studies reveal that 77 per cent of sex workers found that police officers were concerned about their safety and 70 per cent affirmed that they have reported violent incidents after decriminalization. This legislation also enhanced the working conditions of sex workers and enabled them to access health-care services. Decriminalization also protected sex workers from violence and exploitation by allowing them to negotiate safer practices and refuse sexual services to abusive clients.

The case study of New Zealand epitomizes the advantages of decriminalizing all aspects of sex work and demonstrates how the decriminalization model effectively addresses the issues raised in Bedford. Canada should follow the footsteps of New Zealand and fully decriminalize prostitution to render sex work safer for prostitutes.

Proponents of the Nordic model maintain that decriminalizing sex work may increase the demand for prostitution and the rate of sex trafficking. Denmark decriminalized the selling and purchasing of sexual services in 1999 — the same year that Sweden implemented the Nordic model. The findings of a study conducted in Sweden after prostitution law reform indicate that the percentage of men purchasing sexual services in Sweden has dropped from 13.6 per cent to 7.8 per cent. As the demand for prostitution decreased, fewer women were trafficked into the sex trade. According to these findings, the rate of sex trafficking dropped between 30 per cent to 50 per cent from 1999 to 2002 in Sweden whereas the rate of sex trafficking and the demand for prostitution significantly increased in Denmark. Street prostitution in Denmark is three to four times higher than in Sweden and the estimated number of human trafficking cases after law reform is 500 in Sweden and 2,500 in Denmark.

It is also argued that decriminalizing prostitution will increase the likelihood of sex workers being exploited by pimps in brothels because this model grants brothel owners — who are often exploiters themselves — greater control over the well-being of sex workers. In so doing, it relies on the goodwill of the brothel owners by expecting them to prioritize the safety of sex workers over profit margins, even though the contrary is true.

The National Police Service report documented that criminal gangs were using violence against sex workers while working as brothel owners in Denmark. Regular inspections did not prevent them from engaging in violent behaviour since police inspectors were found to be working for them. Brothel owners chose to not report violent incidents and prostitutes were unable to truthfully report their working conditions due to fear of experiencing violence at the hands of brothel owners who supervised their interview during the inspection.

The decreased rate of street prostitution in Sweden after law reform in no way indicates a lesser demand for sex work. The decline in street prostitution is a consequence of prostitution shifting from the streets to the Internet after the implementation of the Nordic model. This shift occurred because clients can communicate with sex workers for the purpose of prostitution without fear of arrest on digital platforms.

The lower rate of sex trafficking in Sweden also does not suggest that criminalizing prostitution-related activities decreases sex trafficking. This may be attributable to the fact that sex workers feel more reluctant to report cases of sex trafficking when prostitution-related activities are criminalized, as evident in New Zealand. Victims of sex trafficking were arrested for involvement in sex trafficking prior to decriminalization. Once all prostitution-related activities were decriminalized, sex workers and brothel owners in New Zealand increasingly reported sex trafficking cases. Decriminalization facilitated the procedure of reporting cases of sex trafficking by eliminating the fear of arrest among prostitutes and obligating brothel owners to report such cases, as failure to report can lead to arrest.

Where the safety of sex workers is concerned, monitoring brothels can substantially improve the working conditions of prostitutes. Conducting interviews during inspection alone is insufficient for detecting violence and ensuring the safety of sex workers. For this reason, Nevada implanted panic buttons and other safety mechanisms in easily accessible locations at the legalized brothels. When threatened with violence, sex workers can press the panic buttons that will ring a buzzer indicating a call for help and brothel owners will immediately come to their rescue.

Profit serves as an incentive for brothel owners — who seek to maximize profit like any other employer — to create a safe environment where conflict-free transactions can occur that protect sex workers and sustain the economic viability of the sex industry. A majority of the brothel owners interviewed in a study contended that it is not in the economic interest of brothel owners to maintain an environment of danger. Such climate will drive away hard-working prostitutes and wealthy clients who are looking for a good time — and not a dangerous liaison — and considerably decrease the profit margins.

Despite the developments in Canada’s prostitution laws, prostitution remains one of the most hazardous professions that women engage in. Sex workers are subject to violence and exploitation perpetrated by clients and brothel owners in addition to being vulnerable to sexually transmitted diseases and discriminating criminal laws. Bill C-36, in its current form, not only fails to protect sex workers from the harms of prostitution but further marginalizes and disadvantages them due to the Nordic model’s punitive approach to prostitution. Only by decriminalizing all aspects of prostitution will we be able to protect sex workers and effectively address the issues prevalent in the sex industry.

This is the second part of a two-part series. Part one: Prostitution law reform in Canada: Considering shortcomings of Bill C-36

Nawshin Ahmed is an incoming first-year law student at the University of Windsor. She graduated from the University of Toronto with an honours bachelor of arts degree in ethics, society and law. Her legal areas of interest include human rights law, criminal law and tort law. You can reach her on LinkedIn.

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