Thank you.
I'm a criminal defence lawyer based in Toronto. I also worked as an independent escort, both before PCEPA was enacted and after it was passed, advertising online and working in calls and out calls.
A unanimous panel of the Ontario Court of Appeal in the recent decision of R. v. N.S., which was released in February of this year, found a majority of the PCEPA criminal provisions to be constitutional and not in violation of section 7 and subsections 2(b) and 2(d) of the charter. The decision made sense to me given the limitations of charter jurisprudence in addressing the problems inherent in this legislation. The ultimate issue is that the criminal prohibitions are compliant with section 7, even if the provisions do nothing to actually achieve their purpose or the overall objective of the act, which is supposedly the eradication of all prostitution. Therefore, in my view, legislative action is required for any meaningful changes.
I struggled a bit with what I was going to say today because the truth is, independent sex workers like me probably have more freedom to sell sex currently under PCEPA than they would in a regulated industry. I saw what the Cannabis Act did to small-scale growers and I fear independent sex workers may face similar challenges in a regulatory environment.
Personally, I notice no differences in the industry between how it was before the laws were passed and how things were afterwards. Men continued to pay for sex just as eagerly as they always did. Third parties like escort agencies continued to operate. I was able to advertise and screen just as effectively as before. However, even though not much changed for me, there are other reasons I think some of the criminal provisions should be repealed.
I worked on a section 286.1 appeal last year, and I had a first-hand look into how police went about enforcing laws against clients. Much of it depended on whether you lived in a progressive metropolitan city, where police have real crimes to focus on, or in a less populated rural town, where police are more motivated to make arrests. If you didn't speak English very well, you were less versed in the industry know-how of how to discern real ads from fake ones. The stings are exclusively relegated to classified sites like LeoList, where the average rates are less expensive and half-hour and 15-minute bookings are more common. Essentially, those unlucky enough to get arrested tend to be less well educated, less white and less well off, which mirrors the trends in the criminal justice system.
Several courts have found the mandatory minimum sentences in the legislation to be unconstitutional. The sentences in section 286.1 begin at a $500 fine for a first summary offence. This means unless the Crown agrees to withdraw the charge, you will receive a criminal record for life and significant hurdles to securing future employment, not to mention that by the logic of this legislation, you're now branded a sexual predator responsible for the exploitation of helpless women. Paradoxically, this also means that you can assault a sex worker and potentially receive no record, but not if you had simply contacted or paid for the services she was voluntarily offering.
The injustice of this legislation is surface level and you don't need a law degree to understand it. Are we okay with criminalizing people for buying something that others happily and legally sell? Are we okay with giving police departments the discretion of enforcing a law that can ruin people's lives and careers? The simple fact of the matter is that the criminal law has never deterred men from wanting to pay for sex. It certainly hasn't in the U.S., where Canadian sex workers travel regularly to work illegally in order to access the healthy demand there.
The sex worker rights movement has gained a lot of momentum since this law was passed. The more visibility sex workers gain in society, the harder it is for anyone to continue to justifiably claim that we aren't just doing it consensually, but that we also highly prefer it to other forms of work.
There are a lot of hysterics and exaggeration on both sides of this debate, and in my opinion, there are good policy reasons to have a legalized and regulated industry and one that prohibits commercial enterprises based on third party profiteering. However, I can say without a doubt that the internal logic of PCEPA claiming that there is exploitation inherent in prostitution is flawed. Certainly, I've never experienced it, and the end-demand model's blanket treatment of all sex workers as victims is more of an affront to our dignity than sex work has ever been.
PCEPA should therefore be repealed in its entirety based on the inaccurate assumptions built into its preamble and legislative history. If Parliament isn't willing to rewrite the laws, there are certain recommendations I would make that I can get more into later, such as specifically repealing parts of the purchasing laws and advertising laws.
Thank you.