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Sex work activists warn against using Nordic model in Canada

‘We will litigate this,’ says Pivot Legal Society’s Katrina Pacey

If the government introduces new prostitution laws along Nordic model lines, there will be constitutional challenges, says Katrina Pacey (right), litigation director at Pivot Legal Society, with Kerry Porth (left). Credit: Jeremy Hainsworth

With new federal prostitution laws expected any day, sex-work activists and their allies warned June 3 that any attempt to impose the so-called Nordic model that criminalizes clients rather than sex workers would only lead to continued victimization of already marginalized people.

“It hasn’t worked in other countries, and it won’t work here,” Pivot Legal Society lawyer Katrina Pacey says as Pivot, the Gender and Sexual Health Initiative (GSHI) of the BC Centre for Excellence in HIV/AIDS and the University of British Columbia, released two studies critical of the Nordic model.

“We will see more missing and more murdered women,” Pacey says.

Federal Justice Minister Peter MacKay said June 2 that a new bill to reform the laws will be introduced this week following the release of results of a government online public consultation. “A very clear majority felt that purchasing of sexual services should be illegal, should be a criminal offence, and the other side of the coin that the selling of sexual services should not be criminal,” the Toronto Star quotes MacKay as saying.

MacKay says that is the message from more than 31,000 people who completed an online Justice Department survey about how Ottawa should respond to the Supreme Court of Canada’s Bedford decision. Fifty-six percent of respondents say buying sex should be criminal, while 66 percent said selling it shouldn’t be.

The consultation came in the wake of the December 2013 Supreme Court of Canada ruling in Bedford v Canada. The landmark ruling struck down the laws criminalizing street soliciting, living off the profits of prostitution, owning a brothel and pimping as overly broad and disproportionate to the purpose they were intended to serve.

The court repeatedly found that the laws put sex workers in jeopardy, violating Section 7 of the Charter of Rights and Freedoms, which protects Canadians from laws that attack their life, liberty and security. The ruling came in the wake of challenges to the laws in Ontario and BC.

At the time of the ruling, MacKay issued a statement expressing disappointment in the Supreme Court’s decision, saying that the government is “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.” But activists point to the Criminal Code, noting that there are plenty of other sections that deal with sex-worker harm issues, such as assault and forcible confinement.

It’s up to the government to use them rather than criminalize anyone, they say. It’s time for the government to move away from a law-and-order-agenda approach to sex work, they add.

Research in Vancouver shows that criminalizing clients endangers the health and safety of the most marginalized sex workers, according to a newly published study in one of the top global health journals, British Medical Journal Open.

Between January and November 2013, researchers conducted in-depth interviews with 31 street-based sex workers in Vancouver to examine sex workers’ experiences and negotiation of safety and health following the implementation of new Vancouver Police Department (VPD) enforcement guidelines introduced in January 2013. The guidelines prioritize sex workers’ safety over arrest while continuing to focus enforcement on clients and third parties, a situation akin to the Nordic model.

But the research shows that sex-work-related arrests increased from 47 in 2012 to 71 in 2013, following introduction of the new VPD enforcement policy. And, despite a commitment to sex workers’ safety, the research suggests there’s been no decrease in rates of work-related physical or sexual violence after policy implementation. It notes that 24 percent of 275 street-based sex workers in 2012 experienced violence, compared to 25 percent of 236 women in 2013.

Dr Kate Shannon, GSHI director, UBC medicine professor and lead BMJ report author, says targeting clients pushes sex workers into alleys where the johns can see them away from police. She says that puts sex workers in rushed situations where assessment and negotiation are limited, access to police for safety issues becomes limited and the potential for violence greater.

“Harassing the client is exactly the same as harassing the women,” she says. “The findings clearly show that criminalization of clients in Canada risks recreating the same devastating harms to the health, safety and human rights of sex workers as the last two decades of missing and murdered women,” Shannon adds. “Sex workers in the research were very clear: where clients continue to be targets of police, sex workers’ ability to protect themselves from violence and abuse, or access police protections, is severely limited.”

A second report and legal analysis of the BMJ Open research was also released. Entitled “My Work Should Not Cost Me My Life: The Case Against Criminalizing the Purchase of Sex in Canada,” it provides a legal analysis of the evidence from the BMJ Open research, as well as from Sweden and Norway, regarding the impacts of criminalization of clients on sex workers’ safety. The report concludes that given the harms created by this model of criminalization and the reasoning from Canada v Bedford, there is a strong case to be made that a law that prohibits the purchase of sexual services would violate sex workers’ constitutional right to security of the person and should be struck down.

“This important new research concludes that using the criminal law to target clients perpetuates the life-threatening conditions that sex workers faced under the laws that were struck down in the Bedford case,” says Pacey, litigation director at Pivot Legal Society. “If this approach were to become the law in Canada, it would create the same unconstitutional harms the Supreme Court found are a violation of sex workers’ right to security of the person.” 

Pacey says if the government introduces new prostitution laws along Nordic model lines, there will be constitutional challenges. “The Supreme Court will face this question again and will again strike it down,” she adds. “We will litigate this.”