On June 13, the Supreme Court of Canada will hear arguments in Bedford v. Canada, a landmark case that challenges the criminalization of sex work. The three sex workers involved argue that Canada’s Criminal Code violates their human rights. As the head of a leading international women’s health and rights organization and a Canadian jurist, I agree. My work with women across many countries has persuaded me that as long as sex work is criminalized, directly or indirectly, women (and men) engaged in sex work are extremely vulnerable to violence and other human rights abuses.
In Canada, consenting adults can legally exchange sex for money or other valuables. Yet, while prostitution is legal, virtually every activity related to it is criminalized. Canada’s Criminal Code makes it illegal for sex workers, their clients, and third parties to communicate about the exchange of sex for money in a public place, including a vehicle, to use, rent, or own indoor workspaces, or to “live on the avails” of prostitution. What this means in practice is that sex workers cannot take basic measures to screen their clients, work indoors in a safe, familiar place, or hire drivers or security personnel to protect them. It also threatens spouses or live-in partners who share expenses with sex workers.
International health and human rights experts – including UNAIDS , the World Health Organization , the UN Special Rapporteur on Health , and the Global Commission on HIV and the Law – have concluded that criminal laws and penalties against sex work threaten the health and human rights of sex workers, and have advocated for their repeal. These experts have also found that laws criminalizing activities associated with sex work invite police harassment and violence and push sex work underground, where it is harder to negotiate safer conditions.
Decriminalization is consistent with Canada’s legal obligations under the Convention on the Elimination of Discrimination against Women (CEDAW). The UN Committee responsible for monitoring state compliance with CEDAW has expressed concern about police harassment of women sex workers, and about their health, security, working conditions, and privacy. It has urged states to “ [a]dopt measures aimed at preventing discrimination against sex workers and ensure that legislation on their right to safe working conditions is guaranteed at national and local levels .”
The Canadian Parliamentary Sub-Committee on Prostitution Laws and the Oppal Commission Inquiry into the police mishandling of the serial murders of sex workers in British Columbia have also found that laws that criminalize sex work place sex workers at increased risk of violence. As Commissioner Wally Oppal stated: “I conclude that there is a clear correlation between law enforcement strategies of displacement and containment in the period leading up to and during my terms of reference, and increased violence against prostitutes.”
Criminalization disproportionately affects street-based sex workers, who represent 93 to 95 per cent of those arrested in Canada. These are often the most marginalized sex workers, Aboriginal or otherwise racialized women or transgender persons, often homeless, disabled, or struggling with addiction. As the trial court in the Bedford case observed, criminalizing either sex workers or clients for the offense of “communicating” forces sex workers “to forego screening customers at an early and crucial stage of the transaction,” putting them at an increased risk of violence.
These laws also impede sex workers’ access to basic health and social services, and exacerbate HIV risk in many ways, including by making sex workers or sex work establishments reluctant to carry condoms or information on using them because condoms are often used by the police as evidence of prostitution.
The Canadian Charter of Human Rights and Freedoms is an international model for the protection of human rights, including the rights to life, security, liberty, and equality. Decriminalizing sex work would be an important step toward making this model work for Canada’s most marginalized individuals, and an essential step toward ensuring their inclusion as full citizens.
Françoise Girard is President of the International Women’s Health Coalition and a Canadian jurist.