In one of the assignments we had to craft our own constitutional challenge including outlining the specific facts that we would rely on.
I recall sitting at the back of the class, and we were going through our each respective case and getting feedback. I recall outlining that I was challenging the Protection of Communities Exploited and Persons Act (PCEPA). Prior to joining law school in July 2014, I was the only visibly and out First Nations woman who publicly opposed as it was then-known Bill C-36 (now PCEPA) — while there were other Indigenous women involved they either could not be out publicly or were in support of the bill/PCEPA. I was also invited back to Parliament to provide some comments on the legislation’s mandated review.
When I listed out the facts for my project I outlined that it involved an escort who worked for an agency. The primary applicant was a young Indigenous woman who was 18. The agency was based in a city in northern Ontario. That agency employed the escort. The agency would procure clients for the escorts they employed. The agency would also provide transportation to and from calls as well as remain at the call for the duration. The driver would sometimes have to drive 40-plus minutes out of the small city where the agency was based. Sometimes, the clients would be on hunting trips and there would be firearms in the hotel rooms where the escorts would visit.
After these last few facts, my professor interrupted me, waving his hands and saying that would never happen.
I said, “Sorry, this did happen because this happened to me.”
This is the troubling aspect that is missing from the constitutional challenge in the recent case Canadian Alliance for Sex Work Law Reform v. Attorney General 2023 ONSC 5197. First, the constitutional challenge took aim at the generally stopping traffic offence, the communication offence, the purchasing offence, the material benefit offence, the procuring offence and the advertising offence. The challengers largely premised their arguments that any aspect of criminalization including asymmetrical is harmful including the risk of criminalization. I do not disagree. The court, however, disagreed and dismissed the challenge.
The case presents a moment for pause and reflection as to a number of issues. The arguments advanced by the sex work applicants and organizations have largely been repeating themselves since 2014 with the same arguments before Parliament. Broadly stating these arguments, that criminalization is harmful without concrete, direct examples outlines how a provision impacts a person. I don’t fault these advocates for advancing what they feel is the best case, but it is clear from these examples that there is missing perspective from sex workers who may be working and living in areas outside larger city centres.
I draw this gap out because the primary evidence that goes on to support the dismissal includes evidence of agencies and officers in large city centres and how women are recruited into the sex trade. There is no evidence why a worker would require a driver in a more northern community or why a worker may rely on someone to procure clients for her, especially in a more northern region where there may be fewer opportunities to screen or advertise (which is part and parcel of screening).
There is also no evidence as to why someone may rely on a third party to assist with travel and accommodations when travelling from a northern region to a larger city centre. All of these types of connections and supports are necessary, but these narratives are missing from the case.
When I think back to my first time in the sex trade, I was admittedly young, but I needed to take steps to ensure I could focus on my schooling and graduate without having to work two minimum wage jobs. I also think back to the time I first walked into the hotel room where a man I later came across in media as wanted on Canada-wide warrants and then, later, walking into another hotel room where another man had multiple firearms lying out on one of the two beds in the room.
I think back to the time that there were a pile of drugs in one hotel room with money lying next to the drugs. Each time, I knew that my driver was outside the door and I had to communicate if it was OK to continue the date. Each of those times, I was able to walk out because of my driver. I made it home because of my driver. Being a young Indigenous woman at the time with no access to a vehicle or understanding of the sex trade including how to advertise or secure and screen clients, my life would have turned out much differently if it was not for the agency.
I understand that this is not everyone’s experience but for me, sex work gave me a way out of many terrible situations. It meant even that I was able to leave home, eventually attend law school and become a lawyer. There were also many times that the law – including police – prevented me from seeking help. This is what we need to remember in terms of the law and its impact of people. There are people’s lives behind these cases. It is more than just a few facts.
Naomi Sayers is an Indigenous lawyer from the Garden River First Nation with her own public law practice. She sometimes teaches primarily on Indigenous rights and governance issues. She tweets under the moniker @kwetoday.
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