In September 2010, Justice Susan Himel of the Ontario Superior Court ruled that the Canadian Criminal Code prohibitions against keeping a common bawdy house, living on the avails of prostitution and communicating for the purposes of prostitution violated sex workers’ Charter rights to freedom of expression and security of the person. The ruling was received by sex workers as a big, hopeful step forward after years organizing and fighting for increased safety and the decriminalization of their work. Terri-Jean Bedford, Valerie Scott, and Amy Lebovitch had, at great personal cost, taken on the federal and provincial governments to fight for their right to safer working conditions. On December 2013 the Supreme Court of Canada echoed Justice Himels’ ruling, finding that the laws that criminalized aspects of sex work were unconstitutional and gave the government one year to redesign the laws in order to reflect sex workers’ rights or let the laws expire.
However, after largely symbolic consultations that centred narratives of violence, victimization, and deeply conservative views of sexual morality, Justice Minister Peter MacKay and the then-in-power Conservative Government characterized sex work as inherently dangerous, ignoring the ways that bad laws create such unsafe working conditions. In June 2013 Minister MacKay tabled The Protection of Communities and Exploited Persons Act criminalizing the purchase of sex, communication for the purpose of selling sex, gaining material benefit from sex work, and advertising sexual services (more on this bill here). According the government, sex workers were all victims of trafficking and in “need of rescue” and rehabilitation services through religious and non-governmental organizations. In practice this has mostly looked like the defunding of organizations that centre sex workers’ rights and arrests and deportation of migrant sex workers in Canada.
This brings us to the policy briefing Challenging Trafficking in Canada which was presented at York University in November 2017. Panelists Elene Lam, the director of the Asian and Migrant Sex Workers Support Network, Syed Hussan, the coordinator of Migrant Workers Alliance for Change, Andrea Sterling, the board chair at Maggie’s Toronto Sex Workers Action Project, and Evelyn Encalada Grez, organizer and cofounder of Justice for Migrant Workers discussed the ongoing effects of Canada’s new sex work laws.
Introducing the panel, briefing organizer and co-author, Nicole McFadyen contextualized the briefing and set the stage for understanding why and how racialized women have carried the greatest burden since the new laws were implemented in Canada. Anti-trafficking organizers have led a successful campaign conflating trafficking with all forms of sex work.
As Andrea Sterling from Maggie’s showed, anti-trafficking groups have made bank on newly reserved funds for rescuing and rehabilitating victims of trafficking. For example, Toronto’s Heart House received significant funds from the government for such work, though they’re unable to fill the beds they have reserved for such work as they’re unable to find victims who meet their criteria. Meanwhile Maggie’s receives no funds despite applying for them and despite their long, established, and effective work in Toronto. Further, relations between sex workers and police services remain seriously fraught, though police have benefited immensely from the funding reserved to help sex workers and victims of trafficking. Sterling discussed how volunteers from Maggie’s had to form ad hoc search parties when a community member and person who accessed services at Maggies went missing. She was eventually found dead after months of the police not taking her disappearance seriously.
Syed Hussan situated the problems and failures of the new laws within the broader conversation of migrant workers’ rights. Much of the discourse that informed the formation of the new laws characterized migrant women in particular as in need of state intervention and as better off in their home countries, regardless of what these women had to say of their experience or their work. Hussan showed how migrant workers in Canada face unsafe and abusive work environments even when they access work through Canada’s Temporary Foreign Workers’ programs. The programs themselves are designed to be coercive and offer few rights for workers. I’m reminded of migrant workers who traveled to rural communities in Saskatchewan and the precarity of their lives as they depended on the goodwill of their employers. In one situation, a woman from Central America was sent home not because she was doing a poor job but because her employer didn’t like how she spent her leisure time at the local bar. To Hussan, the definition of trafficking appears best reflected in the relationship migrant workers have to the Canadian state. That is, the Canadian government itself is trafficking migrant workers.
Evelyn Encalada Grez historicized Canada’s Temporary Foreign Workers Program as an extension of Canada’s foreign aid efforts. Attitudes toward and policies governing migrant workers in Canada need to be understand in the context of broader histories of migration, a person’s right to migrate, their right not to migrate, and histories of slavery and structural oppression. In the current culture, Canadian employers benefit most from employing migrant workers. Workers are unable to say “no” to unsafe labour or they risk not only losing their job but being forced out of Canada. Encalada Grez shared the story of a Mexican migrant worker in Canada who recently lost his legs during a work accident. Migrant workers are put at risk for the sake of Canadian benefit and comfort–their bodies marked as worth risking. To combat the ways Canadian employers can abuse migrant workers, Encalada Grez suggested workers receive Permanent Resident status immediately upon arrival into Canada.
Elene Lam focused on the failings of the new laws and how they’ve been used to target racialized sex workers specifically. Discourses surrounding trafficking deny the diversity and fullness of experience and the views of migrant sex workers. They are paternalistic and racist. While the laws were introduced as a way to protect vulnerable people from abuse, abduction, and rape, what they’ve actually done is enforced state power and disempowered sex workers–which, one suspects, was the intent of the Conversative government despite their show of concern.
For sex workers and their allies, the last seven+ years have been emotionally arduous, heartbreaking, and deeply enraging. The Canadian government had an opportunity to listen to the needs of those impacted by the legislation but they did not. The new laws do not reflect the spirit of the rulings in the Ontario Superior Court and the Supreme Court of Canada. To make matters worse, the current Liberal government has failed to address these issues, abandoning sex workers to the Conservatives poorly considered legislation.
Read the full policy brief Challenging Trafficking in Canada here.