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

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PIVOT LEGAL SOCIETYPART 3: EMPLOYMENT andlabour lawB.C.’s employment and labour legislation creates important rights andprotections for workers. However, despite the existence of this legislation,the most fundamental labour and employment rights of sex workers arebeing violated, and they are unable to access the legal protections availableto other workers. This chapter outlines the steps that should be taken toprovide sex workers with equal access to the employment rights and protectionsprovided under existing B.C. law, and examines whether the existinglegislation adequately serves the needs of workers in the sex industry.The repeal of the criminal laws pertaining to adult prostitution is a critical step towards providingsex workers with equal access to workers’ protection. Under the current legal framework, althoughprostitution itself is legal in Canada, the criminal laws relating to prostitution create restrictionson employment in the sex industry. For example, being an “employer” of a sex worker is effectivelyprohibited by s. 212(1)(a) of the Criminal Code of Canada (the “Criminal Code”). The “procuringlaw” makes it a criminal offence to procure or solicit a person to have sexual intercourse with anotherperson. As a consequence of this section, any person who employs sex workers is likely to be in violationof this section of the Criminal Code and may also be infringing the criminal law prohibiting“living on the avails of prostitution.” Living on the avails of prostitution is a criminal offence if therelationship between the employer and sex worker is judged to be “parasitic.” Courts have appliedthe term “parasitic” in a way that renders wage sharing by sex workers and employers susceptible toprosecution under Criminal Code s. 212(j). As the Ontario Court of Appeal in R. v. Barrow stated,“[t]he element of parasitism was found in the fact that she was in the business of rendering services toprostitutes because they were prostitutes.” Despite the existence of these criminal laws, many sex workers currently work for “employers,”and often do so in licensed businesses. For example, sexual services are often provided under the guiseof massage and escort businesses. These businesses can, therefore, be characterized as operating in a“quasi-legal” way, because they are licensed to provide massage and escort services, but in addition tothose services, many businesses that hold these licenses also offer sexual services. The true nature ofthese services is commonly known but, particularly in Vancouver, city council and police tend to turna blind eye to the criminal offences that such businesses commit. Sex workers are in an extremely disempowered position as a result of the current criminal laws.They have little or no opportunity to avail themselves of the administrative laws that provide benefitsand protections to other workers. There are a number of reasons for this problem. When askedwhether they would consider seeking assistance from the government on employment related issues, Criminal Code, R.S.C. 1985, c. C-34, s. 212 (j) [CCC]. In R. v. Barrow (2001), 54 O.R. (3d) 417 (Ont C.A.) at para 29, theaccused ran an escort agency, arranging “dates” between male clients and female escorts employed by the agency and even though herrelationship with her escorts was supportive and friendly rather than exploitive, her occupation was found to be “parasitic” in that shewas in the business of rendering prostitution services. The court held that the offence of living on the avails of prostitution does notrequire proof of coercion. Daniel Wood, “House Rules” Vancouver Magazine (April 2004).78
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformsex workers stated that they fear the stigma and discrimination that could result from disclosure oftheir employment in the sex industry. Likewise, filing a claim under the Employment Standards Act orthe Workers Compensation Act means disclosure of one’s type of work and identity to a governmentaffiliatedbody. Sex workers stated that they fear the possibility of criminal sanctions if they reveal thattheir business practices violate criminal law. Complaining about working conditions could expose anemployer to severe consequences, such as loss of a business license or criminal sanctions, and couldlead to retaliation against the worker, or termination of the business itself – in which case the workerwould lose her job. Given their inability to access employment protections, sex workers are extremelyvulnerable to exploitation by employers.Few sex workers seek the labour and employment protections available to other workers. Noneof the participants in this project reported filing a claim under the Employment Standards Act or theWorkers Compensation Act, and decisions rendered under these statutes show that few such claims haveever been made in B.C. Further, we found that lack of awareness and understanding of their legalrights was a serious problem among the sex workers who contributed to this project. If the employmentand labour rights of sex workers are to be respected, basic education about their legal rights is animportant first step.Part of the barrier in discussing prostitution as a labour and employment issue is the commonlyheld stereotype that any sex industry “employer” is an exploitative and controlling “pimp.” Whilethat type of exploitative situation exists, it cannot be applied to all employers in the sex industry. Thetype of employment issues that sex workers face varies greatly, depending on the type of sex work. Sexworkers struggle with many of the same employment issues that would arise in the “straight” worldpertaining to wages and working conditions. At its most extreme, the exploitation that some sexworkers experience is a form of sexual slavery:A. He said I can live there and he will buy me clothes. He won’t charge me clothes; hewon’t charge me food, and stuff like that. I can stay there. All I have to do is working.I live there and he supplies drugs for me . . . . With two girls and he buys all theclothes, he pays the rent, and all you have to do is work for him. And he charge thoseguys around $180. But same thing. Like he will make a list of how many drugs I dobecause I have some drugs like, um, he makes sure I have drugs every day like eventhough . . . . I have to make money he would put it on the list. So everybody is doingheroin. And what happened, it’s like he introducing me to rock [crack cocaine].Cause like what happened it’s like I do not really know how to do cocaine at the time.I do not really know that. But I starting to find out what rock is and this is how hecontrol us. Cause rock is really addictive. What happened is at the time; I startedto know some girls from him. Like I know a girl . . . she is not supposed to be [inCanada] and she travel all over the place and making money with prostitution . . .and what happened is she told me two kinds of girls. Two kinds. One kind like her,is free like her, which means she knows those dealers for sex . . . the bigger dealers.Right, and because she got money in Malaysia so she can pay for her own passport.Fake passport money. And she can pay for the ticket - airplane ticket. And that’s whyshe is free so she chooses who she work for. And she told me there is a different one.The different one is the . . . I met later on at the massage parlour. Which means theydo not have freedom. They have to stay in certain places. They cannot walk out, theycannot talk to people. They cannot tell people their real name and stuff like thatbecause like those dealers, those people dealers they pay for the passport and for theairplane and ticket and stuff like that. Usually those girls coming from Thailand orMalaysia around those countries between those countries.- female off-street in-call sex worker79
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