Andrea Werhun is a performer, producer and author of Modern Whore: A Memoir.
On a cool, spring day in March of 2021, the Canadian Alliance for Sex Work Law Reform (CASWLR) launched a court case at the Ontario Superior Court to challenge several sex work-related criminal offences, arguing that they violated sex workers’ constitutional rights to life, liberty, and security as protected by the Canadian Charter.
There was hope in the air, inspired by the bold challenge of the Alliance, a coalition of 25 groups from across the country with a mandate to protect sex workers’ rights, including six individual applicants. Advocates and allies were inspired, too, by the generations of Canadian sex worker activists who have long fought for our right to work safely, with dignity, free from discrimination.
Perhaps this time, things would be different.
We had hope in 2013, when the Supreme Court of Canada struck down three prostitution-related offences in Bedford v. Canada, which prohibited sex workers from working together indoors; from hiring security and other third-parties; and from communicating in public. These prevented sex workers from screening clients and safely negotiating boundaries, and disproportionately targeted racialized, two-spirit, transgender, drug-using and houseless street-based sex workers.
The evidence was irrefutable. The Supreme Court called the laws “dangerous,” adding they prevented “people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.”
The ruling was a victory, but the timing couldn’t be worse. In 2014, Prime Minister Stephen Harper’s Conservative government swiftly passed the Protection of Communities and Exploited Persons Act (PCEPA), a bill that introduced new laws more restrictive than those they replaced. In addition to keeping the previously struck laws on the books, the government made the purchase of sexual services a criminal offence for the first time in Canadian history. All clients are now legally defined as perpetrators of violence while sex workers are considered hapless victims, devoid of autonomy.
This framework for regulating sex work is popularly known as the Nordic model, a so-called feminist approach that seeks to abolish sex work by ending demand for sexual services by criminalizing the purchaser. Since its adoption in Sweden in 1999, it has been implemented in Finland, Norway, Iceland, France, Ireland and Israel.
The Nordic model has widely failed in its agenda to abolish the sex trade. In Ireland, where the purchase of sex was criminalized in 2017, violent crimes against sex workers almost doubled. In France, 10 sex workers were murdered in a six-month span in 2019, and many saw it as the outcome of the Nordic model, adopted three years earlier. In Norway, sex workers reported feeling afraid to file charges against violent clientele for fear of eviction, while landlords reported being contacted by police and asked to evict sex workers.
In Canada, a 2021 study found that after PCEPA, sex workers routinely experienced police harassment, included being carded, followed, detained or held against their will without arrest by the cops, which made them five times less likely to call 911 in an emergency.
While the sale of sexual services is technically legal under the Nordic model, it remains impossible to engage in sex work without breaking the law. Marginalized sex workers are especially vulnerable to systemic violence at the hands of predators and the criminal justice system.
Last week, Ontario’s Superior Court delivered its decision: Canada’s criminal laws against sex work are, in fact, constitutional. The federal government argued that the main objective of our current prostitution laws is to “target and end the demand for sexual services.”
In other words, if the laws are harming sex workers, then they are working exactly as intended.
Canada should instead consider the New Zealand model, where sex work has been fully decriminalized for citizens aged 18 or older for the last 20 years (except for migrant sex workers). Violence has decreased, workplace conditions have improved and sex work has been integrated into existing social and legal frameworks by regulating the industry like other commercial businesses. Kiwi sex workers can even access unemployment benefits if they choose to leave the industry.
So, where do we go from here?
“It’s safe to say that when the Alliance took on this case, we intended to see it through to the Supreme Court,” Jenn Clamen, the CASWLR’s national co-ordinator told me over e-mail. “That intention has not changed, and we hope to appeal.”
The PCEPA is both ineffective and dangerous. No moralistic attempt to abolish the sex trade has ever been successful at anything other than harming sex workers. Criminalization kills. Listen to us. We are workers and we have hope.
The generations-long fight for the equal right to life, liberty and security continues.