Good afternoon. My name is Kyle Kirkup. I am a lawyer and a Trudeau Foundation scholar at the University of Toronto faculty of law. My research examines the role that Canadian criminal law has played, and continues to play, in regulating gender and sexuality. As part of the research, I have conducted qualitative interviews with sex workers and sex work community organizations in Canada.
I want to make three related points about Bill C-36.
First, I want to underscore the considerable harms that will be created by its sweeping list of provisions that directly or indirectly criminalize adult sex work.
Second, I want to situate this legislation in its larger context. The underlying logic behind Bill C-36 is not new. Canada, like so many countries around the world, has a long and misguided history of criminalizing sexual activities on the basis of morality.
Third, I want to explain why we should resist the claim that creating more criminal offences, more sentences, and putting more people in prisons will ever be an effective way to respond to the complex substantive equality issues that are raised by adult sex work. Instead, I want to encourage the government to listen carefully to what current sex workers—women, men, and transgender people—are actually saying about what they need to work safely and with dignity. It is not another ill-conceived criminal law.
Let me start by briefly talking about the considerable harms that will flow from Bill C-36. The legislation draws heavily upon the so-called Nordic model of criminalizing the clients of sexual services, but it goes much further, particularly with its advertising and communication provisions. We might call this made-in-Canada approach the Nordic model's bigger, deadlier cousin.
Fifteen years after passing the act, Sweden is nowhere near ending the demand for sex work. Claims that we have heard this week suggesting that the Swedish model has been some sort of a panacea are simply not supported by sound, methodologically rigorous evidence. With Bill C-36 we now see Canada going down a similar, albeit even more misguided path than Sweden. The legislation may have a new title, a new preamble, and a new goal of targeting the purchasers and not the sellers of sexual services, but make no mistake about it, Canada's new legislation will replicate the same harms that led the Supreme Court of Canada to strike down the former laws in Bedford.
As Chief Justice McLachlin noted in the unanimous opinion:
The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
With clients anxiously trying to avoid police detection, street-based sex workers will continue to have little time to take precautionary measures such as writing down a licence plate number before moving to risky, more isolated locations. Unable to communicate in locations where persons under 18 can reasonably be expected to be present—virtually everywhere in my respectful submission—sex workers will face the constant risk of arrest by the police. With significant limitations placed on third-party advertising, sex workers will find it difficult to work in safer indoor locations.
In light of the legislation's disproportionate impact on vulnerable members of Canadian society, its potential arbitrariness, its overbreadth, its gross disproportionality, and its curtailment of freedom of expression, there are serious questions about whether this bill will withstand the inevitable constitutional challenge. While we wait for Bill C-36 to be struck down in whole or in part, we leave current sex workers in deeply precarious conditions. How long do we have to wait for them to tell us what they already know; that the criminal laws aren't going to make them safer?
Instead of again going down the path of creating constitutionally suspect criminal laws, I urge the government to consider regulatory models such as those developed in New Zealand. Since 2003, New Zealand has set up a system that prioritizes human rights and labour protections while also giving municipalities, and working with municipalities to create, health and safety and zoning regulations. If Parliament is serious about providing sex workers with meaningful options, including exiting the sex industry, the New Zealand model is much more effective in connecting them with service providers.
Second, I want to situate Bill C-36 in Canada's long history of using the criminal law to regulate morality. I want to do so by drawing some parallels between the shared struggles of gay, lesbian, bisexual, and transgender communities and sex workers. Like the over 80 countries around the world that continue to criminalize LGBT lives, Canada has a long history of using the criminal law to regulate sexual practices that take place between consenting adults.
In recent Canadian jurisprudence, however, we are now seeing courts moving away from using the expressive power of the criminal law to condemn these practices. Perhaps most notably, in its 2005 decision in Labaye, the Supreme Court of Canada held that consensual sex between adults in a swingers' club did not constitute criminal indecency within the meaning of subsection 210(1) of the Criminal Code. As Chief Justice McLachlin remarked in that decision:
But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.
In From Disgust to Humanity: Sexual Orientation and Constitutional Law, University of Chicago law professor Martha Nussbaum makes a similar claim. Writing about the regulation of gays and lesbians in the United States, Nussbaum argues that the politics of disgust has been and remains at the root of opposition to the recognition of civil rights. In the place of disgust, Nussbaum calls for us to recognize the humanity in all members of society, including those who engage in non-normative sexual practices. Our histories are qualitatively different, of course, but there are shared struggles with the disgust that has too often been directed at LGBT people and sex workers.
The Canadian government's attempt until 1969 to use the criminal law to abolish homosexuality, and its attempt today to abolish adult sex work, is rooted in a similar, underlying logic. If we threaten people with enough criminal punishment, the argument goes, we'll eventually get them to just say no, whether it be to gay sex or to adult sex work.
When we hear the Minister of Justice make reference to “the perpetrators, the perverts, [and] the pimps”, he is indeed proposing criminal laws that rely upon disgust instead of sound, evidence-based public policy. Rather than focusing our attention on flawed approaches that prioritize criminalization, we should be reframing the discussion to one about human rights, to labour protections, and to safety.
As many people in this room can attest, Canadians are deeply skilled at regulation. Indeed, we regulate everything.
Third, let me end with a few words about the danger of attempting to use the blunt force of the criminal law as a public policy tool. As I observed in an editorial on June 4 in The Globe and Mail, when it comes to criminal justice policy perhaps the government's slogan should be “Got a complex social issue? There’s a prison for that.” With Bill C-36, Canada is set to continue down the harmful, ineffective, and constitutionally suspect path of pursuing “tough on crime” legislation, all the while purporting to secure substantive equality for women.
As we have this important public policy conversation we must not lose sight of the many criminal provisions that we have on the books to respond to the important concerns about exploitation and violence that we've heard this week. These offences include human trafficking, kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, aggravated assault, aggravated sexual assault, and a series of gang-related offences.
In the face of these wide-ranging, existing criminal laws, it seems misguided in the extreme to attempt to protect vulnerable members of Canadian society by enacting legislation that makes adult sex work more dangerous. As a society, we should be concerned about any labour practices, and there are many of them where people are not afforded basic human rights and have not been able to make meaningful choices about the work that they do because of gender, because of race, because of disability, because of sexual orientation, because of socio-economic status. But the sound, evidence-based public policy response is not to rush to create new offences to respond to the deep complexities of adult sex work.
Rather, let me urge the government to listen carefully to what current sex workers are actually saying about what they need to work safely and with dignity. It is not another ill-conceived criminal law, and it is not Bill C-36.
Merci beaucoup.