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

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PIVOT LEGAL SOCIETYPART 11: CALL TO ACTIONThe widespread and systemic rights violations experienced by sex workersin Canada must be addressed. Sex workers are routinely denied the rightsand protections accorded to other workers and, as a result, are forced to liveand work in dangerous and demeaning conditions. In many instances, sexworkers are not entitled to avail themselves of these legal protections becauseof their source of income. In other cases, they are entitled to these rights andprotections, but face practical barriers as a result of pervasive stigmatizationand prejudice.The purpose of this report is to provide a comprehensive overview that will serve as a startingpoint for discussion of the many complex and controversial issues surrounding sex work and regulationof the sex industry. Sex workers themselves should be provided with a prominent role in any law,policy, or social reform. This report highlights the issues to be considered by all levels of governmentas they engage in the process of law reform. As illustrated by the information presented, sex workershave expertise, knowledge and insight into the legal issues they face and the ways in which laws can beapplied or amended to provide them with the equality, liberty and personal security that is guaranteedunder the Canadian Charter of Rights and Freedoms. Although there is considerable diversity among sex workers, they share the experience of systemicdiscrimination, marginalization and social alienation. If they are to achieve full citizenship, sexworkers should have access to the human rights complaint process and equal opportunities whenit comes to availing themselves of the other protections offered by law. All legislation effecting sexworkers must be consistent with the Charter.The starting point when considering the issue of sex work and legislative reform is the need forcriminal law reform. Pivot’s research suggest that the only way to evolve towards a legal frameworkthat is empowering and allows for the safety of sex workers is to repeal the Criminal Code provisionsrelating to adult prostitution. Repealing the criminal laws relating to adult prostitution, ss. 210, 211,212(1), 212(3) and 213, will create the opportunity for sex workers to access the employment andlabour protections that are afforded to other workers under the laws of B.C. and Canada.With the repeal of these criminal laws, sex workers will face fewer barriers to accessing the protectiveservices of the police. Clearly, the criminal laws that are in place to protect all Canadians fromexploitation and violence should be applied equally to sex workers in cases where they are victimsof crime. Sex workers emphasized that they want full access to police protection as well as rigorousenforcement of laws when they are victims of crime, including when they are subject to exploitationby pimps or clients. Sex workers deserve equal access to the criminal justice system. Persons who arecoerced or forced to engage in sex work against their will should have full access to the protectionsfound under the criminal laws of Canada, and specifically those provisions that prohibit sexual andphysical assault, harassment, threats and extortion. While they want and deserve equal access to theseexisting laws, sex workers indicated that no additional laws designed specifically for their protectionare necessary. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K),1982, c. 11 [Charter].222
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformLike other industries, the laws that regulate employment, labour and occupational health andsafety should be applied to improve working conditions in the sex industry. This report has found thatthere are a wide range of employment standards that could provide sex workers with the rights andprotections they seek. Sex workers did not demand amendments to the existing employment standards;they felt that the existing protections are sufficient in the context of their work. However, theysuggested that the legislation should contain an explicit provision that sex workers never lose theirright to terminate a contract for sexual services at any time for any reason.Consensual adult sex work should be recognized as a legitimate form of labour. It is of utmostimportance that sex workers have information concerning their rights and, specifically, the knowledgethat only they can control what services are provided to whom. Sex workers should never be deniedtheir right to personal autonomy, and empowering them to consistently exercise this right is a crucialhuman rights measure.Finally, the right of sex workers to unionize as set out in the Universal Declaration of HumanRights and the International Covenant for Economic, Social and Civil Rights must be respected. Thisobjective can only be achieved with the decriminalization of employer/employee relationships withinthe sex industry. Only when sex workers are recognized as legitimate employees can they achieve fullaccess to the unionization process as set out under the Labour Relations Code and the Canada LabourCode. Municipalities should begin contemplating the legal and practical issues that lie ahead. Specifically,municipal governments should begin to meaningfully engage sex workers in planning in orderto develop a mechanism of licensing and zoning that fits both the needs of sex workers and theircommunities. Any licensing scheme should meet the following objectives. First, sex workers who wishto work independently or in small owner-operated businesses should not be limited or restricted fromdoing so by an oppressive licensing regime.Any applicable licensing scheme should be fair and not disproportionately costly or restrictive.All municipal by-laws that impose disproportionately high licensing fees should be repealed. Furtherconsultation with sex workers from all facets of the sex industry is necessary to inform the issue ofwhere to locate sex-work businesses. With respect to zoning, any relevant scheme should be guided byconcerns for the safety, privacy and autonomy of sex workers.Many sex workers are willing to participate in the Canadian income tax system. However, trainingis required for all Revenue Canada employees to ensure that they can provide sex workers with accessibleand accurate information in a respectful manner, and also ensure that sex workers and sex workbusinesses are not subject to disproportionately high instances of audits. Sex workers are consciousof the potential loss of privacy resulting from filing income tax returns; therefore government shouldwork closely with them to create a system for their safe and equitable integration into the taxationscheme.In the family law context, criminal law reform is necessary to lessen the current stigmasurrounding sex work and allow for safer working conditions; protecting the safety and human rightsof sex workers is one of the best ways to support them as parents. Judges, lawyers, mediators, MCFDofficials and the public should be sensitized to the fact that a parent’s involvement in sex work is notautomatically relevant to the determination of the best interests of the child, nor is it automatically anegative factor. In child protection and custody cases, determinations of the best interests of the childshould be made on a case-by-case basis in consideration of all factors, and the process and outcome Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948), art. 23.4. International Covenant for Economic, Social and Civil Rights, 19 December 1966, 999 U.N.T.S. 171, arts. 2, 3, 8.1(a), Can. T.S.1976 No. 47, 6 I.L.M. 368. Labour Relations Code, R.S.B.C. 1996, c. 244. Canada Labour Code, R.S., 1985, c. L-2.223
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