Sex Work in Canada Post-Bedford: Perpetuating Harm

By Natasha Procenko

Prior to 2013, sex work—or prostitution, as it is also called—was legal in Canada. Despite this, several Criminal Code provisions in place at the time made almost every activity related to sex work illegal, including the selling of sex indoors; communicating about the selling of sex in public; and living off the profits of sexual services. In the landmark Bedford decision in 2013, the Supreme Court of Canada ruled these provisions unconstitutional as they violated section 7 of the Charter, which protects the security of the person. Given that the laws forced sex workers to do their work in a manner that significantly increased their risk of violence, the court reasoned that the laws violated their constitutionally protected rights in a way that could not be justified under section 1.

One year later, under the Conservative government of 2014, Canada’s current prostitution laws came into force. The new provisions outright criminalize prostitution by making the purchasing of sexual services illegal, and criminalize businesses that profit from the transaction of those services. Importantly, although the buying of sexual services is illegal, the selling of such services is not. Known as the “Nordic model” or the “sex buyer law,” this approach was first introduced in Sweden, followed by Norway, Canada, France, and Northern Ireland.[1] The expectation is that criminalizing buyers will reduce demand and shrink the sex market, thereby decreasing the prevalence of sex work. According to the Canadian government at the time of enactment, the purpose of the new laws were to target “those who create the demand for sexual services, and those who capitalize on that demand.” The laws intend to send a “strong message that everyone is entitled to dignity and respect.”

Despite this claim, the new laws treat sex workers with as much disrespect and indignity as the previous provisions, and sex work in Canada remains difficult and dangerous. They also fail to respect the sex workers’ right to health. For these reasons, the latest prostitution laws are unacceptable from a rights-based perspective.

The data shows that sex workers are vulnerable to significant adverse health outcomes and experiences. Unlike most industries, the sex industry has a high frequency of violence, with 45-75% of sex workers experiencing violence worldwide.[2] Additionally, sex workers in Canada report worse perceived mental health, poorer social determinants of health, and nearly triple the prevalence of unmet health needs compared to the general population.[3]

When buyers of sexual services are criminalized, these harms are perpetuated, not reduced. In 2013, police in Vancouver adopted a sex work enforcement policy that targeted clients while prioritizing sex workers’ safety over arrest. Although police sustained high visibility and showed increased concern for the safety of sex workers, the continued targeting of buyers resulted in sex workers adopting strategies that ultimately risked their health and safety. Sex workers were displaced to outlying areas where they faced increased risks of violence and had to rush through screening clients for risk, including checking ‘bad date’ sheets for past violent perpetrators and detecting intoxication or possible weapons.[4] Among female sex workers who use drugs, the policing guideline change led to an increase in rushed client negotiation, which is associated with client-perpetrated violence and other markers of vulnerability.[5] Criminalizing the purchase of sexual services proved to diminish, rather than bolster, the health and safety of sex workers.

If Canada’s current system reproduces the harms that sex workers faced under the previous laws, which alternative legal model is most consistent with a rights-based approach to health? There are increasing calls among health professionals and sex workers for full decriminalization of the buying and selling of consensual sex work-related services, as in New Zealand.[6] Conversely, the Netherlands and Germany regulate the sex industry under administrative and labor law.[7] There are, however, no regulatory frameworks that grant sex workers autonomy and control. Sex workers’ cooperatives or sole proprietor companies, for example, could protect both the autonomy and health of sex workers.[8]

Regardless of which legal model is best equipped to advance the health of sex workers, Canada’s current laws are insufficient: they reproduce harm and undermine the health of sexual service providers. If Canada is truly to send a “strong message that everyone is entitled to dignity and respect,” its prostitution laws must be consistent with a rights-based approach and prioritize the health of sex workers.

The material in this post was gathered from a presentation by Macarena Sáez at the Schulich School of Law offered in collaboration with the Health Law Institute, the Department of Criminology at Saint Mary’s University, and RED ALAS.  

[1] Sally Howard, “Better health for sex workers: which legal model causes least harm?” (2018) 361 BMJ k2609.

[2] Kathleen N Deering et al, “A systematic review of the correlates of violence against sex workers” (2014) 104:5 Am J Public Health e42.

[3] Cecilia Benoit, Nadia Ouellet & Mikael Jansson, “Unmet health care needs among sex workers in five census metropolitan areas of Canada” (2016) 107:e266 Can J Public Health.

[4] A Krüsi et al, “Criminalisation of clients: reproducing vulnerabilities for violence and poor health among street-based sex workers in Canada—a qualitative study” (2014) 4:6 BMJ Open e005191.

[5] Adina Landsberg et al, “Criminalizing Sex Work Clients and Rushed Negotiations among Sex Workers who Use Drugs in a Canadian Setting” (2017) 94:536 J Urban Health.

[6] Howard, supra note 1.

[7] Ibid.

[8] Macarena Sáez, Autonomy and Health: The Missing Pieces on the Regulation of Sex Work (Schulich School of Law, 2019) [Presentation].