Take Home Assignment

LAWS 3306 A

Crime, Law, Process and Politics

Professor: Paolo Giancaterino

Due: November 26th, 2021

Jacob Pokocky

101150355
0
Introduction

Throughout history, the profession of prostitution had long been plagued with degrading

stigmas.1 Prior to 2013, the criminal justice system contributed to preserving this deviant label. 2

While prostitution was considered a legal activity before this time, prostitution-related activities

were criminally sanctioned.3 The Criminal Code of Canada outlined these illegal activities as (a)

living on the avails of prostitution, (b) soliciting for the purpose of prostitution in public, and (c)

operating and being in a common bawdy house or brothel. 4 These provisions categorized all sex

work participants as criminals, without differentiating between those who exploited and those

who protected sex workers.5 However, such a reality began to change on December 6, 2014,

where Bill C-36, the Protection of Communities and Exploited Persons Act came into force in

response to the Bedford ruling on sex work.6

This bill is rooted in the Nordic model of prostitution policy. 7 It recognizes the dangers

associated with sexual services and prostitution. 8 Such a model seeks to relieve sex workers of

the sanctions above, by decriminalizing the individuals selling sexual services, and adversely

criminalizing the buyers and third-party profiteers of this sexual activity. 9 Bill C-36 amendments

also prohibit the promotion, negotiation, and profiting/material benefit for the purposes of

purchasing sexual services in pubic, limiting pimps from objectifying, and manipulating the

1
Nawshin Ahmed, “Prostitution law reform in Canada: Considering shortcomings of Bill C-36”, (18 August 2021) online on 22
November 2021: The Lawyer's Daily <https://www.thelawyersdaily.ca/articles/29102>
2
Ibid at para 9.
3
Ibid at para 1.
4
Lyne Casavant, & Dominique Valiquet. “Research publications”, (18 July 2014), online: Legislative Summary for Bill C-36
<https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/412C36E>
5
Ibid at s.1.1.
6
Ibid at s.1.1.
7
Ahmed supra note 1 at para 3.
8
Government of Canada, Department of Justice Technical Paper (Ottawa: Department of Justice, 2014) at 4.
www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html.
9
Ahmed supra note 1 at para 3.

1
image of women.10 It greatly influenced procedural changes to the Criminal Code, increasing

punishments for prostitution and human trafficking offences for those who knowingly advertise,

solicit and communicate in public, and purchase sex work and sexual services.11

Through the decriminalization of sexual services, the federal government hopes to limit

this exploitation and any abuse, shielding prostitutes and social communities from other crimes

and harms related to prostitution, such as drug and human trafficking.12

Reason/Intention

The Bedford v. Attorney General of Canada case challenged the Canadian Constitution

and led to the emergence of Bill C-36.13 The Bedford challenge was brought forth by three

women and former sex workers who called into question the constitutionality of sections 210

(keeping a common bawdy-house), 212(1)(j) (living on the avails of prostitution), and 213(1)(c)

(communicating for the purpose of engaging in prostitution) of the Protection of Communities

and Exploited Persons Act.14 They argued that these provisions violated their s.7. and s. 2(b)

rights under the Charter of Rights and Freedoms relating to life, liberty, and security of person,

as well as the freedom of speech, thought, belief, opinion, and expression. 15 This unconstitutional

violation encouraged work conditions in this profession to be unsafe, exposing them to a harmful

environment.16 This could exacerbate the deviant label and criminal stigmatization of those in the

sex trade.17 Bedford argued that because sex work is legal, the previous law should change, and

10
Casavant & Valiquet, supra note 4 at s.1.2.
11
Ibid at s.1.2.
12
Casavant & Valiquet, supra note 4 at s.1.1.
13
Ibid at s.1.2.
14
Ibid at s.1.2.
15
Ahmed supra note 1 at para 2.
16
Ibid at para 6.
17
Ibid at para 6.

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the federal government ought to assist them in restoring their constitutionality, by first making

sex work as safe as possible.18

Parliament recognized, through Bedford, that by sustaining the legalization of prostitution

itself, while conversely enforcing the criminalization of prostitution related activities, sex

workers were compelled to preserve their own safety against the risks of sex work

unaccompanied by the protection of the state and law enforcement. 19 Therefore, the enactment of

Bill C-36 was established to remedy these concerns. The bill attempts to represent a movement

toward treating prostitution as a form of sexual exploitation which negatively impacts women,

rather than a community nuisance.20 The objective of these amendments was to; protect

prostitutes from victimization and sexual abuse; protect communities from the harms caused by

prostitution and the related offences; and limit the demand for sexual services.21

Parliament also justified their amendment to the Protection of Communities and

Exploited Persons Act, hoping that sex workers would be incentivized to come forward and

report violence, as victimization surveys suggested that there was minimal reporting with such

crimes.22 The federal government aspired to empower women by fighting for the autonomy of

their bodies and rights, while establishing their constitutionality within the criminal justice

system.23 Ultimately, the profound justification for this amendment originated from Parliament’s

desire to give women in this industry more opportunities and due process protections to break

new ground and possibly generate a new direction for their life.24
18
Department of Justice supra note 8 at 1.
19
Ahmed supra note 1 at para 8.
20
Department of Justice supra note 8 at 2.
21
Casavant & Valiquet, supra note 4 at s. 1.1
22
Ahmed supra note 1 at para 8 and 9.
23
Ibid at 1 para 9.

24
Casavant & Valiquet, supra note 4 at s.1.1.

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Target/Effect

The enactment of Bill C-36 sought to greatly benefit female sex workers. Prostitutes were

now given impunity from prostitution-related activities in selling their bodies in this bill. 25

Canadian sex trade workers and women’s rights groups appeared to exhibit optimism for the

safety of sex workers after these amendments.26 Activist organizations concerned for women in

this profession were authorized to provide assistance to the workers and help keep them safe

without being considered criminal, whereas before the Bedford ruling, such help was not legally

permitted in spite of their restorative and protective ambitions. 27 Such efforts from the federal

government illustrated their hope to encourage prostitutes to turn to law enforcement for aid

without dangerously acting alone from fear of being criminalized, victimized, or stigmatized for

their role in prostitution.28

As illustrated in the objectives of amendments to the Protection of Communities and

Exploited Persons Act, the community was another agent who was intended to receive benefits. 29

In accordance with the amendments, the federal government announced a $20 million

community funding to remedy the measures and issues involved in prostitution. 30 Such financial

support was intended to endorse and stimulate community organizations that help vulnerable

individuals.31 This funding was to also generate new programs that assist in reconstructing the

stigma of prostitution and help these sex workers who wish to forfeit their profession to find new

meaning in their lives.32 Overall, with a purpose of reducing harm and restoring the integrity of
25
Ibid at s.1.1.
26
Justin Ling. “Governments have failed Canada's sex workers-and they're running out of patience”, (10 September 2018),
online on 22 November 2021: Maclean’s <https://www.macleans.ca/news/canada/governments-have-failed-canadas-sex-
workers-and-theyre-running-out-of-patience/>
27
Casavant & Valiquet, supra note 4 at s.1.1.
28
Ibid at s.1.1.
29
Ibid at s.1.1.
30
Ibid at s.1.1.
31
Ibid at s.1.1.
32
Ibid at s.1.1.

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communities, the federal government wanted people to feel that crime and violence related to

prostitution was reduced and held a unintrusive grasp on the quality of their lives.33

However, not all participants in prostitution were granted increased rights and due-

process protection. The increase in procedural and sentencing changes to the Criminal Code

attempts to crack down on offences involving the purchasing, advertising, and negotiating for

sex trade and exchange of sexual services. 34 Penalties have hardened, and the preventative

changes to these provisions can negatively impact the purchaser’s protection from the state. 35

Ultimately, the attempts made by parliament to benefit sex workers safety by allowing

them to control their services under the margins of the law is very admirable. 36 Although, these

legal boundaries and restrictions on safe sex work has shown to do the opposite of the bill’s

intention, and critics of this bill emphasize how it may inflict more harm and danger upon these

sex workers and the community.37

Opposition

Many feminist organizations along with other legal associations heavily criticized the

amendments. The Canadian Bar Association National Criminal Justice Section highlights many

of the contradictions Bill C-36 possesses, in that the bill caused more problems in the areas it

was trying to fix.38 They essentially outline how several sections, including, s. 213(1.1) on

communicating, s. 286.4 on advertising, and s. 286.2 on purchasing sexual services, are unlikely

to stay truthful to the Bill’s promise and withstand constitutional challenges in future cases. 39

33
Ahmed supra note 1 at para 10.
34
Department of Justice, supra note 13 at para 1.
35
Casavant & Valiquet, supra note 4 at s. 2.1.
36
Ibid at s.2.1.
37
Ibid at s.2.1.
38
Canadian Bar Association, National Criminal Justice. “Bill C-36, Protection of Communities and Exploited Persons Act”,
(October 2014), online on 22 November 2021: Municipal Law Section <https://www.cba.org/CMSPages/GetFile.aspx?
guid=506f61b6-ecdb-441d-9879-f4a1f3bd3f04> at 2 at para 4.
39
Ibid at 3 para 3.

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 The Bill’s amendment to section 213(1.1) on negotiating in public for sexual services

infringe upon the prostitute’s rights under section 2(b) of the Charter, violating their freedom of

expression.40 Prohibiting sex workers from communicating with clients in public can coerce them

into other dangerous situations, contradicting the purpose and justifications of the bills enactment

in the first place.41 Prostitutes are more likely to meet clients in isolated areas to evade law

enforcement and prevent their clients from getting arrested under s. 213(1.1). 42 Without clients,

sex workers are unable to proceed with the services and make their money. This attempt to avoid

police, does not empower them and sacrifices their security and well-being due to the negative

implications s. 213(1.1) places on their practice.43

Amendments to section 286.4 on advertising prostitution, also infringe upon the

prostitute’s rights under section 2(b) of the Charter. 44 Advertising is a necessary tool used to

recruit any client. While the onus is on the advertising agencies to abstain from consciously

advancing sexual service advertisements to the public, the criminalization of these

advertisements in general will restrict the prostitute’s ability to generate income. Additionally,

amendments to both s. 286.4 and s. 213(1.1) impairs prostitutes and puts them at a greater risk of

being infected with sexually transmitted diseases.45

To prove such speculation and opposition from the Canadian Bar Association, real

evidence from Sweden’s Nordic policy reforms will be discussed. As noted above, Bill C-36 is

inspired and related to the Swedish and Norwegian model of prostitution policy, and the Global

Network of Sex Work Projects seeks to understand how 1999 Swedish amendments related to

40
Ibid at 7 para 1.
41
Ibid at 7 para 1.
42
Ahmed supra note 1 at para 9.
43
Ahmed supra note 1 at para 9.
44
Canadian Bar Association supra note 37 at 7 para 1.
45
Global Network of Sex Work Projects. “The Real Impact of the Swedish Model on Sex Workers”, (Nevember 2015), online on
22 November 2021: Community Guide < https://www.nswp.org/sites/nswp.org/files/Swedish%20Model%20Advocacy%20Toolkit
%20Community%20Guide%2C%20NSWP%20-%20November%202015.pdf> at para 6.

6
purchasing, advertising, and negotiating for sexual services affected their populations. 46 After the

Nordic policy took effect, prostitutes engaged in unprotected sex with clients due to their

inability to accessibly negotiate sexual services and adequately screen clients because the

amendments to abolish the soliciting for the purposes for prostitution in public diminished their

power to demand safer sex.47 This also caused the stigma surrounding sex work to be provoked,

contributing to the difficulty for prostitutes to access housing and health-care services. 48 When a

sex worker is stigmatized, their vulnerability to violence and manipulation by clients and third

parties increases.49 And despite the fact that sex workers were legally recognized as victims, law

enforcement turned harm reduction measures from legislation, such as the use of condoms and

lubricant, into evidence of crime.50 This not only negatively impacted Norwegian sex workers

rights, health, and safety, but it also inflicted a crime control model when due process rights were

supposed to protect these women.51 Without advertisements, the clients they could recruit were

more questionable, forcing the prostitutes to spend more time on the streets and take what they

could get, given their economic detriment.52

For this reason, as demonstrated in Sweden and Norway, s. 213(1.1), s. 286.4, and s.

286.2 for abolishing the purchase of sexual services could violate s.7 of the Charter, according to
53
the Canadian Bar Association. The amendments to all these provisions in Canada have the

potential to decrease the quality of life of sex workers in Canada and inhibit their right to life,

liberty, and security of persons.54 This illustrates how Bill C-36 failed in their promise to ensure

46
Ibid at 1
47
Ibid at 3.
48
Ibid at 3.
49
Ibid at 3.
50
Ibid at 5.
51
Ibid at 6.
52
Ibid at 6.
53
Canadian Bar Association supra note 37 at 3 para 3.
54
Global Network of Sex Work Projects supra note 44 at 3

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constitutionality under s. 7 and s. 2(b) of the Charter is provided to sex workers. 55 The image and

reputation of the community was more important to parliament than truly empowering these

women and giving them the opportunity to have autonomy over their bodies. 56 Ultimately, Bill

C-36 has the potential to further complicate the procedure and legislation surrounding

prostitution, endangers the lives of sex workers by restricting certain aspects of their profession,

which contradicts the constitutional progress made by the Bedford ruling.57

Conclusion

The 1999 Swedish policy reforms were emphasized greatly above, in how they have

impacted their country. This example is only valuable to assume and predict how Canada could

respond to the amendments in Bill C-36, given the similarities between Canada’s and Sweden’s

policy. However, the Pivot Legal Society, in partnership with Sex Workers United Against

Violence, conducted research in Vancouver which found similar social issues related to

Sweden’s Nordic polices on prostitution in Canada. They found that Vancouver sex workers

experienced violence and health-related harms due to their movement to dangerously remote

spaces and their inability to negotiate the terms of sexual transactions. 58 All these negative

implications from amendments to s. 213(1.1), s. 286.4, and s. 286.2 of the Criminal Code, caused

women in this profession to receive inadequate protection from law enforcement, forcing further

alienation and marginalization.59 Such sex workers also reported occupying more time in the

streets to locate potential clients, increasing the likelihood for them to take chances with

questionable people and for predatory crimes and violence to occur.60

55
56
Ahmed supra note 1 at para 9.
57
Ibid at para 9.
58
Katrina Pacey. “My work should not cost me my life”, (3 June 2014), online on 22 November 2021: Pivot Legal Society & Sex
Workers United Against Violence <https://www.pivotlegal.org/my_work> at para 5 & 6.
59
Ibid at para 5 & 6.
60
Ibid at para 5 & 6.

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 Regardless of these findings, Crime Statistics Canada highlights that the

provinces/territories with the largest decline in police-reported prostitution crime were British

Columbia (-72%).61 The federal government asserts that these statistics reflect their attentiveness

to these women’s issues.62 Parliament’s true purpose and intent in amending these policies was to

extinguish the sex trade.63 Bill C-36 deceives the public and manipulated sex workers to

originally believe that their due process rights were protected by the state. And Parliament

recognized these vulnerable women as victims to sexual violence and crime but failed to

acknowledge their own contributions to the victimization and isolation of such sex workers. Out

of the three major objectives and promises of the federal government – to protect prostitutes

from victimization, victim blaming, and sexual exploitation; protect communities from the harms

caused by prostitution; and limit the demand for sexual services – almost all of them were

unfulfilled, as demonstrated in the research above. 64 Statistics Canada’s data is not representative

of the entire truth. The Pivot Legal Society, in partnership with Sex Workers United Against

Violence showed how prostitutes in Vancouver, British Columbia were suffering due to the

inadequacies provided to them under the amendments from Bill C-36.65

Such manipulation and deceit exhibited by the federal government raises the question as

to whether they have the best interests and procedures in place to protect all of society? The

victimized sex workers need more than what Bill C-36 provides, as the effect of the amendments

were contradictory. In the future, The Canadian Bar Association recommends and the

amendments to s. 213(1.1), s. 286.4, and s. 286.2 be removed. 66 But, there appears to be limited

61
Mary Allen & Cristine Rotenberg. “Crimes related to the sex trade: Before and after legislative changes in Canada”., (21 June
2021), online on 22 November 2021: Government of Canada, Statistics Canada <https://www150.statcan.gc.ca/n1/pub/85-002-
x/2021001/article/00010-eng.htm> at para 12.
62
Ibid at para 13.
63
Casavant & Valiquet, supra note 4 at s. 1.1
64
Casavant & Valiquet, supra note 4 at s. 1.1
65
Pacey, supra note 59
66
Canadian Bar Association supra note 37 at 12, 16, and 17.

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desire or movement currently to make these necessary adjustments. 67 Without any new change in

approach from Parliament, sex workers will continue to struggle with the stigmas and danger

they face in society, fending for themselves and deprived from the necessary protection from the

state.

Bibliography:

Ahmed, Nawshin. “Prostitution law reform in Canada: Considering shortcomings of Bill C-36”,

(18 August 2021), online on 22 November 2021: The Lawyer's

Daily <https://www.thelawyersdaily.ca/articles/29102>

Allen, Mary & Cristine Rotenberg. “Crimes related to the sex trade: Before and after legislative

changes in Canada”, (21 June 2021), online on 22 November 2021: Government of

Canada, Statistics

Canada <https://www150.statcan.gc.ca/n1/pub/85-002-x/2021001/article/00010-eng.htm>

67
Laura Hensley. “Sex Workers Say Canada's laws put them in danger - and demand the new government fix them - national”,
(27 February 2020), online: Global News <https://globalnews.ca/news/6073593/canadas-sex-worker-laws-bill-c36/> para 19-20.

10
Canadian Bar Association, National Criminal Justice. “Bill C-36, Protection of Communities and

Exploited Persons Act”, (October 2014), online on 22 November 2021: Municipal Law

Section < https://www.cba.org/CMSPages/GetFile.aspx?guid=506f61b6-ecdb-441d-9879-

f4a1f3bd3f04>

Casavant, Lyne & Dominique Valiquet. “Legislative Summary for Bill C-36 ”, (18 July 2014),

online on 22 November 2021: Parliament of Canada Research Publications

<https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/

LegislativeSummaries/412C36E>

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Workers”, (Nevember 2015), online on 22 November 2021: Community Guide <

https://www.nswp.org/sites/nswp.org/files/Swedish%20Model%20Advocacy%20Toolkit

%20Community%20Guide%2C%20NSWP%20-%20November%202015.pdf>

Government of Canada, Department of Justice. “Prostitution criminal law reform: Bill C-36,

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<https://www.justice.gc.ca/eng/rp-pr/other-autre/c36fs_fi/>

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<https://globalnews.ca/news/6073593/canadas-sex-worker-laws-bill-c36/>

11
Ling, Justin. “Governments have failed Canada's sex workers-and they're running out of

patience”, (10 September 2018), online on 22 November 2021: Maclean’s

<https://www.macleans.ca/news/canada/governments-have-failed-canadas-sex-workers-

and-theyre-running-out-of-patience/>

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12