Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYSome sex workers worry that information given on a tax return could be used against them in otherways. For example, one sex worker expressed concern about being discriminated against by othercountries where she may wish to travel.A. It’s a really good point, because, yeah, you start doing your taxes, and you start, you havesome card in your wallet. And you are not going to be able to go to America anymore.- female off-street out-call sex workerWhen discussing disclosure of work-related information to Revenue Canada, sex workers expresseda conflict between two competing interests: the desire to become accepted as a legitimate profession,and fear about ongoing discrimination as a result of having prostitution become more public.It is quite likely that increased exposure of the sex industry would create challenges for individual sexworkers, as decriminalization may not reduce the stigma of sex work.Concerns about increased tax law enforcement by Revenue CanadaThe repeal of the criminal laws related to prostitution may make the sex industry more visible,potentially increasing Revenue Canada’s ability to track and assess sex workers. Some participants wereconcerned that legal reform would result in Revenue Canada enforcing tax laws against sex workersmore rigorously. A business owner felt that many sex workers are not ready to pay the amount of taxthat the government demands:A. So 10 grand a month, no matter what wonderful things, awesome things, wouldcome with decriminalization, that is to our benefit, and all those things that wouldgo along with it – I think, the one question – that’s a 45 percent tax bracket. I thinkif you told them – did you know that you would have to give up 45 percent of thatmoney? That’s your tax bracket? First they would never believe you, as most of thesewomen have never paid tax in their lives. And, if you told them, that y’know, thatwhen you go do a blow job then, for $200, you’re really only going to get $110. Theywould laugh at you . . . But I think, if you were able to pull off street sex workers,and after going through every wonderful benefit, they could get from decriminalization,and said, But to be decriminalized, you would have pay the tax man, 40-45percent of your income. Do you still want it to be decriminalized? The resoundinganswer would be no, because at the end of the day, you have to remember why we arein this business – to make money.- female massage parlour owner, former sex workerAs one female street-level sex worker put it, “the disadvantages would be that the government knowsexactly where you are located and . . . tax time!”Concerns about retroactive taxationAn individual who fails to file a tax return as required by the ITA is guilty of an offence, andmay be liable to a pay a fine and/or face imprisonment. 14 Also, they may be subject to penalties thatincrease the amount of tax owing. 15 Revenue Canada can assess individuals for taxes not paid onincome received in prior years. 16 Although sex workers already face the prospect of retroactive taxassessment, sex workers were concerned that the repeal of criminal laws could increase the priority14 Supra note 1, s. 238(1).15 Ibid., s. 162.16 Ibid., s. 152(4): In general there is a three year limitation period in which Revenue Canada can reassess a tax payer. However if amisrepresentation can be attributed to neglect, carelessness, wilful default or fraud, Revenue Canada is not subject to any limitationperiod.166
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformRevenue Canada places on retroactive tax collection from sex workers, and its ability to track sexworkers. 17 Participants were concerned that retroactive assessments could result in some sex workershaving to increase their involvement in the sex industry to pay back taxes and penalties.Revenue Canada could seek to exempt sex workers from retroactive assessment should prostitutionbe decriminalized. Such an exemption is rare and requires the approval of the federal Ministerof Finance. Revenue Canada does not have the authority to waive taxes owed. There have been pastexamples where the Minister of Finance has waived taxation for certain groups. One example is s. 87of the Indian Act which exempts those who qualify as “status Indians” from taxation on their personalproperty – including employment income – that is situated on a reserve. 18 Participants felt it wasappropriate to provide an exemption from retroactive tax assessment for sex workers so that they aretaxed only on income earned after the date that the Criminal Code provisions relating to prostitutionare repealed.Some sex workers suggested that there should be an exception for all sex workers:A. Oh definitely, an exception. Once – Once it’s legalized it should be just start fresh.Because no – Who’s going to remember? Y’know street-level or what – Which itbasically is, now, is street-level. I mean who is going how much you made? Y’know,I don’t count how many tricks that I did last week. Or how many this I did. So nothere should be an exception. As soon as you start payin’ taxes, that’s when you startgetting taxed . . .Q. Do you think the exception should only be made for street-level sex workers? Or forall sex workers?A. All sex workers.- female street-level sex workersSome sex workers felt that liability for retroactive tax would force them to work more to pay off theirdebts to Revenue Canada.A. I was thinking that if you did it, retroactively. What about if you were out of thebusiness and they were to say, Oh! You owe this money. And now you would have toget back into it. I mean that’s not very good.A. Oh well, that could easily happen. What would they care?A. Oh yeah! That’s my point, that’s all my point.A. I mean that’s – that’s like absolutely ridiculous like, to make people do that.A. And And by what I am saying is by asking for taxes, that is essentially the messageyou are sending; get to work, make it up and pay us.- female off-street out-call sex workersSome participants felt it would be unfair to expect them to pay retroactive tax:A. Well it was illegal before so what about right when they put the law into place thensay, okay, here’s your start date if you continue on to do sex work, because somepeople started when they were teenagers just to survive and the government didn’t donothing for them back then . . .17 Canada Customs and Revenue Agency [CCRA] notice released June 12, 2003: Revenue Canada has a program, administered bythe Investigations Division, to identify people who support themselves through illegal activities and ensure that they file income taxreturns and financial statements, if necessary, every year. CCRA auditors have a network of special contacts in the various police forcesand in governmental and para-governmental bodies who carry out criminal investigations and gather information. The auditors alsoreceive information from the media and leads provided by the public.18 Therefore, if an Indian earns employment income, what must be determined is whether that income is situated on a reserve. Whenmaking this determination, the approach taken by the Supreme Court of Canada, in the case of Glenn Williams v. The Queen, 92 D.T.C.6320, [1992] 1 C.T.C. 225, must be followed. This approach requires the examination of all factors connecting income to a reserve.167
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