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

PIVOT LEGAL SOCIETYHuman rights law generallyCanada’s human rights legislation at both federal and provincial levels aims to create an inclusivesociety in which all individuals are free from discrimination and inequality. Human rights codesprovide protection against discrimination on prohibited grounds – such as sex, race and age – inrelation to listed practices, such as the provision of goods, services, and accommodation.The Canadian Human Rights Act (the “CHRA”) provides protections against discrimination, butonly in relation to federal private businesses and the Government of Canada. Therefore, the CHRAwould apply to employers and service providers who fall under areas of federal jurisdiction, includingnational airlines, federal departments and agencies, and Crown corporations. Thus, even in a decriminalizedsetting, few if any sex workers would fall under the jurisdiction of the CHRA.In B.C., the B.C. Human Rights Code (the “BCHRC”) presents sex workers with the greatestpotential for protection, both at present and in the event that prostitution is decriminalized. TheBCHRC offers protection against discrimination in the areas of employment, services, and accommodationthat do not fall under federal jurisdiction.In order to be covered by human rights codes in Canada an individual must be discriminatedagainst in a context that includes employment, provision of services and accommodation, or onthe basis of some other ground listed in the legislation. Interaction between persons outside of oneof these relationships or contexts is not covered under the legislation. For example, if an individualwalking down the street receives verbal insults from a stranger, a claim cannot be made against thatperson under the BCHRC. To bring a claim under the BCHRC, you must file a complaint with theB.C. Human Rights Commission within six months of the date of the harassing or discriminatorybehaviour. Discrimination involves the treatment of an individual differently, and less favourably, because ofcertain personal characteristics or grounds, such as race, national or ethnic origin, colour, religion,age, sex, sexual orientation, marital status, family status, or disability. Some Canadian human rightslegislation, including the BCHRC, also prohibits discrimination based on past criminal convictions.This is significant in the context of sex work, where workers may have previously been convicted ofprostitution-related offences, and may suffer discrimination in the context of their employment or intheir attempts to access services to the public. A claimant may be eligible for compensation for lostwages, injury to dignity, feelings and self-respect flowing from the discriminatory behaviour.Human rights protections for sex workersThere are two main areas where sex workers would benefit from the protection of human rightslegislation should they seek such protection: discrimination based on lawful source of income occurringin the context of housing and provision of services, and discrimination based on sex throughsexual harassment occurring in the context of employment. Even under the current system that criminalizesmost activities surrounding sex work, many of the protections under the BCHRC are availableto sex workers. However, it is clear from sex workers that very few, if any currently avail themselves ofsuch protection.The next two sections look at sex workers’ experiences of discrimination based on lawful source ofincome and discrimination based on sex, and consider how B.C.’s human rights legislation can offerprotections for sex workers. Also B.C.’s human rights laws are examined to see how they could bedeployed should the criminal laws relating to adult prostitution be repealed. See, for example, the statements of purpose at s. 2 of the Canadian Human Rights Act, R.S. 1985, c. H-6 and s. 3 of theB.C. Human Rights Code, R.S.B.C. 1996, c. 210. Canadian Human Rights Act. Human Rights Code. Ibid., s. 22.182