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

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PIVOT LEGAL SOCIETYshould not be clouded by assumptions, discrimination and prejudice surrounding a parent’s involvementin sex work.A full range of business structures should be available to accommodate the diverse ways in whichsex workers will want to conduct business. Sex workers should have the freedom to choose the way inwhich they structure their businesses, just as other businesses do, and not be subject to any legislativerestrictions on possible business models. Additionally, sex workers should always have the ability towork independently, and not be pressured financially or otherwise to work for an employer.Sex workers will require education and support to negotiate for employee status and the rights andprotections that flow from it. Sex workers expressed the need for education for officials and employeesof government and tribunals, including the Employment Standards Branch and Labour RelationsBoard, to reduce the stigma and prejudice that they often endure.Sex workers requested explicit legislative protection whereby a person’s entitlement to socialassistance and Employment Insurance may not be cancelled or affected in any other way by his or herrefusal to work, or to continue to work, as a sex worker.Law reform is not enoughLaw reform is not enough. Social and economic initiatives should be designed to assist womenand men who are involved in sex work and are seeking alternative options by which to earn theirlivelihood. However, it should not be assumed that all sex workers are seeking to exit the sex industry.In order to ensure that any such initiatives are appropriate and effective, education and sensitivitytraining should be provided for all levels of government, law enforcement and emergency services staffwho make decisions that affect sex workers and the sex industry.The intersection of criminal and immigration issues makes migration and sex work a very complexmatter. If a non-Canadian sex worker is in Canada contrary to immigration laws and procedures, thenshe or he can be detained and deported at any time. If a sex worker is in Canada on a temporary visaand commits a criminal offence, she or he can be subject to criminalization and required to leave thecountry. If a sex worker has permanent resident status, he or she would probably not be deported,but may be subject to criminalization. The potential of arrest, detention and removal from Canadameans that migrant sex workers can be doubly punished for engaging in sex work. This has the effectof driving migrant sex workers underground, particularly those who are in Canada illegally or ontemporary visas, and will often prevent them from seeking the assistance of police, emergency services,community organizations, and other social services.Women and men engage in sex work for a wide variety of reasons and, regardless of their motivationor personal circumstance, they deserve safe working conditions and access to the same rights andprotections as other workers in Canada.The Charter acknowledges that Canada is founded upon principles that recognize the rule of law. The Charter also establishes that every person is “equal before and under the law and has the right tothe equal protection and equal benefit of the law without discrimination.” Sex workers, a distinct andmarginalized class of persons, will not begin to realize their individual and collective right to equalitybefore and under the law until the criminal laws surrounding adult prostitution are repealed. This isthe first step towards recognizing the human rights of sex workers and moving towards a new, progressivelegal framework for the sex industry. Charter, supra note 1. Charter, supra note 1, s. 15.224
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformAPPENDIX A: THE ALLOCATION OFLEGISLATIVE POWER UNDERCANADA’S FEDERAL STRUCTUREIf the criminal laws relating to adult prostitution are repealed, the provincialand federal governments will need to consider their respective areas of jurisdictionto determine which level of government has the constitutional powerto regulate prostitution, either by using existing legislation or by enactingnew laws.Section 91 of the Constitution Act, 1867 defines the scope of the power of the federal governmentand s. 92 sets out the powers of the provincial governments. Areas of law relevant to prostitutionthat fall under federal jurisdiction include: criminal law, immigration law, federal taxation law, someaspects of family law, federally incorporated companies, the federal pension plan, and employmentinsurance. Provincial jurisdiction includes: employment law, some aspects of family law, provinciallyincorporated companies, employment law, provincial labour law, and many aspects of social welfare.The provincial government delegates some of its powers to municipal governments via the MunicipalitiesAct.If a government enacts a law in an area outside its jurisdiction (i.e. it is ultra vires), that law isunconstitutional. Therefore, any new laws designed to regulate prostitution in Canada must beenacted by the appropriate level of government for them to be constitutionally valid. Given the waypowers are divided between the federal government and the provinces, the federal government doesnot have the authority to enact one piece of overarching national legislation that regulates all aspectsof prostitution. In fact, should prostitution be decriminalized, the majority of new laws enacted toregulate it will fall within provincial jurisdiction, with the result that very different standards andregulations could be created in different provinces. There are some safeguards to curb discriminatorylegislation at the provincial and municipal levels, but in the event of decriminalization, it will ultimatelybe impossible for the federal government to retain control over the regulation of all aspects ofprostitution.How current laws would applyBecause the regulation of prostitution cannot fall under exclusive federal jurisdiction, no singlebinding federal legislation regulating every aspect of the industry can be enacted (in contrast to NewZealand, a unified state which enacted a single regulatory mechanism when prostitution was decriminalized). Instead, in a decriminalized context, the sex industry would be subject to laws of generalapplication that regulate all industry and commerce, and protect civil rights. Many of these laws fallunder provincial jurisdiction. Constitution Act, 1867 (U.K.). Prostitution Reform Act, 2003 (N.Z.) 2003/28, s.18 These include: s.92(7) public health; s.92(8) municipal institutions in the province; s.92(9) licenses in order to raise revenue forprovincial, local, or municipal purposes; s.92(10) local works and undertakings; s.92(13) property and civil rights in the province; and225
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Beyond Decriminalization: Sex-work, Human Rights and a New ...

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