Triple-X Workers' Solidarity Association of B.C.

 

 

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Freedom to Associate

Justice Committee Report No. 4

Canada's Parliamentary Standing Committee on Justice and Human Rights has conducted a Review of Canada's new 2014 prostitution laws — the Protection of Communities and Exploited Persons Act. June 22, 2022, the Parliamentary Committee on Justice and Human Rights tabled their report: "Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Act." Parliament is on summer recess since June 23 and will not resume until September 19.

In February 2022, Triple-X submitted this brief to Canada's Justice Committee Review of PCEPA that specfically outlines the laws' infringement on freedom to associate.

  • Stronger Together: Solidarity Organizing and Exploitation Prevention – Courts decided government has an obligation to support solidarity organizing: "Dunmore [Ontario Supreme Court decision] cracked the door open for expanding the scope of the right of freedom of association to cover certain collective activities that have no individual analogue."



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Red Umbrella March, Vancouver, June 11, 2016. Photo: Elaine Ayres
Red Umbrella March, June 11, 2016. Photo: Elaine Ayres

Freedom to Associate and the Red Umbrella March

Vancouver's First Red Umbrella March for Sex Work Solidarity was held on June 8, 2013 to show popular support for sex workers ahead of the Supreme Court of Canada's review of Canada v. Bedford. Sex-worker events were coordinated in cities across Canada that weekend, including Ottawa, Montreal and Toronto. The Vancouver Red Umbrella March was organized by Triple-X Workers' Solidarity Association of B.C. and co-sponsored by Downtown Eastside Sex Workers United Against Violence (SWUAV), PACE Society, Pivot Legal Society, B.C. Coalition of Experiential Communities (BCCEC), FIRST: Feminists for Decriminalization of Sex Work.

In December 2013, The Supreme Court ruled that all three sections of the Criminal Code that prohibited prostitution violated Canada's Charter of Rights and Freedoms, and gave Parliament one year to address the concerns of the ruling or the laws would be repealed.

First Vancouver Red Umbrella March, Vancouver, June 8, 2013. Photo: Esther Shannon
First Red Umbrella March, Vancouver, June 8, 2013. Photo: Esther Shannon

On June 14, 2014, Triple-X organized Vancouver's second annual Red Umbrella March for Sex Work Solidarity (co-sponsored by SWUAV, Pivot, PACE, BCCEC and FIRST) to keep the public's attention on the issue as the new Conservative Government held hearings to inform the creation of new prostitution laws that would meet the Supreme Court's concerns.

In December 2014, the Government of Canada enacted new laws to replace the old sections of the Criminal Code with the Protection of Communities and Exploited Persons Act (PCEPA).

Red Umbrella March 2022 Display Ad

Triple-X continued to organize the annual Vancouver Red Umbrella March (with the previous co-sponsors joined by SWAN Society) every second Saturday in June for the next five years (2015-2019). In July 2019, in an interview with The Georgia Straight, Triple-X spokesperson, Andrew Sorfleet, revealed that the law "stands right in the way of sex workers being able to form their own association." Then, in 2020, public health orders prohibited large outdoor gatherings in response to the COVID-19 pandemic. For Red Umbrella March 2020 (RUM 2020) and RUM 2021, Triple-X produced online events to mark premiering slideshow videos to commemorate the event.

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2022 Justice Committee Review of PCEPA

From February through April 2022, the Parliamentary Standing Committee on Justice and Human Rights conducted hearings for a Review of Canada's new 2014 prostitution laws - the Protection of Communities and Exploited Persons Act.

June 22, 2022, the Parliamentary Committee on Justice and Human Rights tabled their report: "Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Act." Parliament is on summer recess since June 23 and will not resume until September 19.

The Justice Committee has recommended parliament repeal two laws: Criminal Code s.213 [Communicating to Provide Sexual Services] and s.286.4 [Advertising Sexual Services]. The Justice Committee has also recommended the repeal of four sections of the Immigration and Refugee Protection Regulations that make migrants working in the sex industry unable to report incidents without fear of deportation. There are 17 recommendations total.

Triple-X submitted a brief which received mention on pg. 31 (pg. 41 of PDF):

"Triple-X Workers' Solidarity Association of B.C.'s brief states that the law does not contemplate sex workers organizing unions or professional associations or the possibility of such organizations collecting membership dues, and providing services such as advertising and promotion of the industry. They call for amendments to clearly permit such organizing by sex workers."

In February 2022, Triple-X submitted this brief to Canada's Justice Committee Review of PCEPA, "Stronger Together: Solidarity organizing and exploitation prevention," that specifically outlines the laws' infringement on freedom to associate.

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Court Rulings on the Constitutionality of PCEPA

  • Ontario Superior Court of Justice, Canadian Alliance for Sex Work Law Reform et al v. Canada (Court File No.: CV-21-00659594-0000) – Notice of Application filed March 30, 2021. The case will be heard October 3, 2022. Applicants argue that the Criminal Code provisions that address the commercial exchange of sexual services violate sections 2(b), 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms. (Factum of the Intervener, Canadian Civil Liberties Association)

    BETWEEN: Canadian Alliance for Sex Work Law Reform, Monica Forrester, Valerie Scott, Lanna Moon Perrin, Jane X, Alessa Mason and Tiffany Anwar AND Attorney General of Canada AND Attorney General of Ontario (Intervener) AND Amnesty Internationa Canadian Section (English speaking), Association for Reformed Political Action Canada, AWCEP Asian Women for Equality Society, Black Legal Action Centre, Bridgenorth Women's Mentorship and Advocacy Services, British Columbia Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Civil Liberties Association Parents Against Child Trafficking Coalition, Defend Dignity, EGALE Canada and the Enchanté Network, Evangelical Fellowship of Canada, Migrant Workers Alliance for Canada, Ontario Coalition of Rape Crisis Centres, Sexual Health Coalition, Women's Equality Coalition, and Women's Legal Education and Action Fund (LEAF) (Interveners).

  • Court of Appeal for Ontario R. v. N.S. ONCA 160, February 24, 2022 – "This case is not about unionized employees and the impact on collective bargaining; nor is it about persons engaging in lawful work. It is about persons who are providing sexual service for consideration, contrary to law. In adopting a variant of the Nordic model, Parliament rejected an approach that would characterize persons who provide sexual services for consideration as 'workers' and prostitution as legal sex 'work'."

  • En français : R. c. Kloubakov 2022 ABQB, January 10, 2022 – Alberta Court of Queen's Bench Justice Kristine Eidsvik determined both Kloubakov and Moustaine had violated sections of the Criminal Code making it illegal to materially gain from prostitution and for procuring women into the sex trade, but ruled that the Criminal Code sections the pair was charged under were overly broad and in violation of the Charter and therefore constitutionally invalid. (Calgary Herald)

  • Ontario Court of Justice, R. v. Anwar, 2020 ONCJ 103, February 21, 2020
  • R. v. N.S. 2021 ONSC 1628 – Reasons for Decision on Charter Challenge to Subsections 286.2, 286.3 and 286.4 of the Criminal Code. Justice P.W. Sutherland. Released: March 4, 2021: "Parliament has decided to allow individual commercial sex work to continue without being subject to prosecution … their rights under section 7 of the Charter remain engaged which includes their life, liberty and security of person shall not be deprived except in accordance with the principles of fundamental justice. … Having determined that section 7 of the Charter has been infringed and that infringement is not a reasonable limit in a free and democratic society, I decline to deal with the alleged infringement to section 2(d) of the Charter."

  • R. v. Anwar, 2020 ONCJ 103, Ontario Court of Justice, February 21, 2020, Court File No. London 18-5872; Kitchener 19-236. Before Justice A. T. McKay. Heard – Conclusion [216]: "I find sections 286.4, 286.3 and 286.2 of the Criminal Code to be unconstitutional. "Regarding the admission of evidence from the two Crown witnesses: "I will admit the evidence. However, given the lack of impartiality and objectivity, and the inability of both witnesses to consider any position other than their favoured ideology, the evidence of the two Crown expert witnesses will be given no weight."

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Sexual Services Offences Criminal Code of Canada 2015

  • Re: Protection of Communities and Exploited Persons Act, The Canadian Bar Association, to Randeep Sarai, M.P., Chair, Committee on Justice and Human Rights, March 18, 2022 [This brief goes through the Criminal Code sections implemented by PCEPA and provides legal opinion on the constitutionality of each.]

  • Crimes related to the sex trade: Before and after legislative changes in Canada, Stats Canada June 2021 – "Between 2015 and 2017, incidents of the new offence of obtaining sexual services from an adult increased sharply before declining for two consecutive years. Individuals accused in these incidents were mostly men."

  • Sexual Services Offences Criminal Code of Canada, 2015 – "…the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity … it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution … [and] to continue to denounce and prohibit the … the commercialization and institutionalization of prostitution…"

  • Canada (Attorney General) v. Bedford, File No.: 34788 2013: June 13; 2013: December 20. p. 1105 – "The impugned laws negatively impact security of the person rights of prostitutes and thus engage s.7. The proper standard of causation is a flexible "sufficient causal connection" standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third-party johns and pimps, or prostitutes' so-called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence."

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Last modified: August 22, 2022
Created: May 24, 2022
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